Suite 2400 '~ DavisWright 1300 SW Fifth Avenue ~... Tremaine ~~P Portland, OR 97201-5610 Derek D. Green (503) 778-5264 tel (503) 778-5299 fax
October 6, 2014
Via Email and US Mail
Public Utility Commission of Oregon 3930 Fairview Industrial Drive SE PO Box 1088 Salem, OR 97308-1088
Re: Columbia Basin Electric Cooperative, Inc. v. PacifiCorp and North Hurlburt Wind, LLC,et. al Docket No. UM 1670
Dear Sir/Madam:
Enclosed is the original plus one copy of the Caithness Defendants' Motion for Sluninary Determination together with the supporting Declaration of Derek Green and Declaration of Jeffrey Delgado.
E~ibits 4,6 and a portion of E~ibit 8 to the Delgado Declaration are being filed under seal, pursuant to the Protective Order in this case. Copies of the sealed materials are being mailed to the Commission and counsel for the parties (including intervenors).
Please contact me if you have any questions.
Very truly yours,
Davis Wright Tremaine LLP
Derek D. Green
Enclosures cc: UM 1670 Service List
DWT 24977552v1 0084118-000016
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BEFORE THE PUBLIC UTILITY COMMISSION OF OREGON UM 1670
COLUMBIA BASIN ELECTRIC COOPERATIVE, INC.,
Complainant, MOTION FOR SUMMARY DETERMINATION OF DEFENDANTS v. NORTH HURLBURT WIND, LLC, SOUTH HURLBURT WIND, LCC, PACIFICORP dba PACIFIC POWER, HORSESHOE BEND WIND, LLC AND NORTH HURLBURT WIND, LLC, CAITHNESS SHEPHERDS FLAT, LLC SOUTH HURLBURT WIND, LLC, HORSESHOE BEND WIND, LLC and CAITHNESS SHEPHERDS FLAT, LLC,
Defendants.
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TABLE OF CONTENTS Page
I. INTRODUCTION AND EXECUTIVE SUMMARY...... 3
II. FACTUAL BACKGROUND ...... 8
III. LEGAL STANDARD ...... 16
IV. ARGUMENT ...... 16
A. The Caithness Defendants are not in violation of the Territorial Allocation Law...... 16
1. Each of the Caithness Defendants Is Exempted from the Territorial Allocation Law Under the Express Language of ORS 758.450(2) and 758.450(4)(c)...... 17
2. Even Aside from their Exemption under ORS 758.450(4)(c), the Caithness Defendants are in Compliance with the Territorial Allocation Law because they do not provide “utility service.” ...... 19
B. Columbia Basin’s Complaint is Barred because it is Untimely...... 28
C. Columbia Basin’s Complaint is an Impermissible Collateral Attack on EFSC Jurisdiction...... 30
D. In any event, OPUC lacks statutory authority to enjoin end-user business activities or to abrogate Caithness’ contract with PacifiCorp ...... 31
V. CONCLUSION ...... 32
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MOTION Pursuant to OAR 860-001-0420 and the Procedural Order issued on August 18, 2014 in this matter, Defendants North Hurlburt Wind, LLC (“North Hurlburt”), South Hurlburt Wind, LLC (“South Hurlburt”), Horseshoe Bend Wind, LLC (“Horseshoe Bend”) and Caithness Shepherds Flat, LLC (“Caithness” or “CSF”) (all four, collectively, the “Caithness Defendants”) move for summary determination denying all claims of Complainant Columbia Basin Electric Cooperative, Inc. (“Columbia Basin”) directed at the Caithness Defendants in Columbia Basin’s Amended Complaint, filed over a year ago before the Oregon Public Utility Commission (“OPUC” or the “Commission”). This motion is supported by the memorandum of law below, the Declarations of Jeffrey Delgado and Derek Green filed concurrently, and the case file. MEMORANDUM OF LAW
I. INTRODUCTION AND EXECUTIVE SUMMARY This case turns on a several straightforward legal questions. The answer advanced by the Caithness Defendants to any of these questions resolves this case in their favor. First, are Caithness and its three subsidiaries, which own affiliated wind-energy facilities that supply solely wind-energy to a customer, exempt from the Territorial Allocation Law, ORS 758.400 to 758.465, because ORS 758.450(4)(c) expressly excludes companies that provide power “[f]rom solar or wind resources to any number of customers” from the law’s provisions? The answer to this first question is yes. It is undisputed that this case concerns companies that provide power “from wind resources” at wholesale. This exemption was enacted by the Oregon Legislature to encourage renewable energy development by entities like the Caithness Defendants. The exemption applies not only to the activities undertaken by wind energy providers, but also to the providers themselves – “to any corporation, company,
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1 individual or association” providing power from wind resources. ORS 758.450(4). See Section VI.A.1, infra. Second, if the Caithness Defendants are not exempt from the Territorial Allocation Law, does that law prohibit South Hurlburt and Horseshoe Bend, owners of affiliated wind-energy facilities that typically self-supply their own power, from backing-up their own self-supplies with power from defendant PacifiCorp, dba Pacific Power (“PacifiCorp”), delivered to them at 230-kV within PacifiCorp’s exclusive Oregon service territory during times when the winds are becalmed, and self-transporting that power over their own internal 230-kV lines for consumption by electrical motors, computers, battery chargers and other electrical equipment used in operating their own wind-energy facilities, simply because some of that equipment is located in Columbia Basin’s claimed service territory, but all of that equipment is electrically isolated from any Columbia Basin transmission line? The answer to this second question is no. The Commission can reach that answer based solely on the language of the law itself, which only prohibits unapproved persons from providing “utility service” within or into an allocated territory. Neither South Hurlburt nor Horseshoe Bend (or any other Caithness Defendant) provides “utility service.” Instead, Horseshoe Bend and South Hurlburt simply consume, as end-users, the high-voltage, back-up power they purchase from PacifiCorp, delivered to them at 230-kV within PacifiCorp’s territory, for their own, exclusive end-use when local winds are becalmed. Neither of them do anything more with that back-up power. Nothing in the Territorial Allocation Law prohibits such consumption by an end-user. See Section IV.A.2(a), infra. Third, regardless of the answer to the other questions before the Commission, assuming arguendo that any “utility service” is found to be involved in this case, is it a “similar utility
1 See also the proviso at the beginning of ORS 758.450(2): “Except as provided in subsection (4) of this section.”
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service” to one provided by Columbia Basin, which has admitted that it does not own or operate any 230-kV transmission facility? The answer to this third question is no. The respective wind-energy facilities of Horseshoe Bend and South Hurlburt each receive back-up station power from PacifiCorp, delivered in PacifiCorp’s service territory, at the 230-kV voltage for which each facility was designed, permitted, constructed, operated and connected to the transmission system of Bonneville Power Administration (“BPA”). Columbia Basin does not and cannot provide power at 230-kV anywhere in its claimed territory because its few transmission facilities are all 115-kV
or below. In Columbia Basin’s own words, “Columbia Basin Electric Cooperative’s system does not include any 230 kV lines, substations, or other facilities at this time.” Delgado Declaration Exhibit No. 8 at 2 (CBEC response to Caithness Data Request No. 4). In other words, Columbia Basin does not provide, and cannot provide except at great incremental expense, a “similar utility service” in its claimed territory. See Section IV.A.2(b), infra. Summary determination in favor of the other two Caithness Defendants, North Hurlburt and Caithness, is the inescapably correct outcome as well. As a third wind generator, North Hurlburt is also exempt from ORS 758.400 to 758.465 under ORS 758.450(4)(c). Moreover, North Hurlburt is an improper party to this proceeding. Its project’s boundaries are entirely within PacifiCorp’s service territory, it owns no electrical facilities in Columbia Basin’s territory, and does not provide utility service to the other projects. CSF likewise does not provide utility service in or into Columbia Basin’s territory. CSF is simply the owner of the North Hurlburt, South Hurlburt and Horseshoe Bend entities. CSF does not own any electrical facilities. It merely provides administrative services to its affiliates, including the function of billing facilitator for the back-up station power delivered to each affiliate by PacifiCorp, in PacifiCorp’s service territory for their individual consumption. If Columbia Basin were to allege any greater role than administration for CSF, then it would have to accept the legal consequence that CSF would also be exempt from ORS 758.400 to 758.465 under ORS 758.450(4)(c). Accordingly,
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summary determination in favor of all Caithness Defendants is proper. See Section IV.A.1 and 2, infra. Columbia Basin’s position, in contrast, necessitates an alternative interpretation of the law that is not only inconsistent with the statutory text, but is also fundamentally at odds with the law’s express statutory purpose. The Legislature declared the purpose of the Territorial Allocation Law to be to prevent duplication of utility facilities and promote efficient and economic use and development of utility services, while providing adequate and reasonable services to all territories and customers. That legislatively-expressed purpose provides context for the statute and must be considered in interpreting the law. Columbia Basin’s interpretation would undoubtedly flout this purpose, requiring not only the creation of additional utility facilities at exorbitant cost, but also conceivably requiring a single customer like South Hurlburt to connect to two separate utility providers, for the same project, solely because one utility believes it has a monopolistic right to so demand. That position finds no support in the Territorial Allocation Law or common sense. Given that all wind and solar projects require back-up power, Columbia Basin’s interpretation would also confine the geographical reach of any such project to the boundary of any one utility’s service territory. That outcome cannot possibly be consistent with the Legislature’s intent to prevent duplication of facilities. See Section IV.A.2(d), infra. This Commission need go no further to resolve this case. If the Commission were to adopt Columbia Basin’s interpretation, however, it would need to also address a host of other issues that prevent Columbia Basin from prevailing on its claims. The first is that Columbia Basin brought this complaint too late. Back in 2010, before any construction had commenced, the Caithness Defendants were instructed by BPA to discuss back-up power arrangements with both PacifiCorp and Columbia Basin. BPA made this a precondition to its agreement to interconnect their wind resources to its transmission system. In the Caithness Defendant’s discussions with Columbia Basin, Columbia Basin never explained how it could serve any
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230-kV load within its claimed territory, and never specified the rate it would seek to impose for that service. It simply made clear that it would not allow the use of any of its existing rates, and intended to impose a discriminatorily higher rate instead. As reflected in the record here, those same uncertainties persist to this day. Also before any construction had commenced, Columbia Basin was on notice of the Energy Facility Siting Council (“EFSC”) proceedings in which the Caithness Defendants were required to identify the location and means for interconnecting their wind resources to the BPA transmission system. The location selected by BPA, a new BPA “Slatt Substation,” is within the PacifiCorp service territory. Indeed, the plans for wind development projects in the specified areas were publicly disseminated in 2006. Despite having full knowledge of the proposed wind projects in their territory, Columbia Basin never raised a public objection to the wind projects’ development plans, passively sitting by while the Caithness Defendants spent billions of dollars on wind facilities and the new BPA interconnection. After the construction of all those facilities, it belatedly asserts a claim that effectively would require the construction of additional facilities after environmental review, at extraordinary cost, in direct opposition to the Territorial Allocation Law’s stated policy of avoiding duplication of facilities, and outside of this Commission’s legal authority to require. Columbia Basin’s prejudicial conduct should not be condoned. In fact, to the extent that Columbia Basin’s complaint would result in the need to alter the facility Site Certificates issued by EFSC, and the BPA interconnection agreements implemented under federal law, it cannot be condoned as a matter of law. See Section IV.B-D, infra. At bottom, Columbia Basin’s request for relief before this Commission suffers from an inescapable flaw. Over a year after it filed its complaint and despite receiving extensive, detailed information about the Caithness Defendants’ operations based on an asserted need to build its case, Columbia Basin has declined to explain where it would or even could deliver back-up power at 230-kV anywhere within its claimed territory, or what facilities it would have to
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construct in order to make such delivery. What it has stated, however, is that if it finds a way to force a sale to any Caithness Party, it will refuse to apply any of its generally applicable rates, instead choosing to discriminate against these particular end-users by “likely” applying a much higher rate that it refused to explain in response to discovery requests. The Caithness Defendants believe that the reason Columbia Basin has declined to provide the requested information is clear: Columbia Basin has no ability to serve the projects at issue unless either of two events occur: (1) new interconnection facilities are built, at extraordinary cost, or (2) Columbia Basin backs-up the projects through Slatt Substation, which is located in PacifiCorp’s exclusive service territory. Neither event is consistent with the Territorial Allocation Law. The only other aspect of Columbia Basin’s position that is clear is that if it were somehow to prevail, it would materially increase costs to some or all of the Caithness Defendants. Those are the realities of this case – realities that Columbia Basin very well knew before it filed this complaint over a year ago. The Caithness Defendants are not in violation of the Territorial Allocation Law (and by extension, any PUC exclusive territory order), and in any event, Columbia Basin is unable to provide any reasonable solution as to how it would provide the necessary service.
II. FACTUAL BACKGROUND The concurrently-filed Delgado Declaration provides a comprehensive description of the wind resources’ development, design, the EFSC siting processes and obligations, the BPA interconnection processes and obligations and resource operations. The Caithness Defendants incorporate that description herein without repeating the detail. A summary is as follows:
A. The Caithness Defendants North Hurlburt, South Hurlburt and Horseshoe Bend each owns and operates a separate wind energy generation facility in north-central Oregon, pursuant to a separate site certificate granted each of them by the Oregon Energy Facility Siting Council (“EFSC”). None of these
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entities sells electric energy at retail or engages in any other activities that would subject them to the jurisdiction of the Commission under ORS Chapter 756, 757 or 758. Instead, each of them is an Exempt Wholesale Generator (“EWG”)2 under the Federal Power Act, as administered by the Federal Energy Regulatory Commission (“FERC”), meaning that none sells power at retail to anyone. Notice of the FERC order acknowledging the EWG status of each of North Hurlburt, South Hurlburt and Horseshoe Bend is entitled: “Notice of Effectiveness of Exempt Wholesale Generator Status” (Nov. 16, 2009), and may be found at 74 F.R. 61144 (Nov. 23, 2009). Each of them is also expressly excluded from the definition of “public utility” under ORS 757.005(1)(b)(C)(iii). See Delgado Decl. ¶¶ 3-6. Caithness is the corporate parent of all three of these resource-ownership entities. Id. at ¶ 7.
B. The Three Site Certificates Shepherds Flat North Site Certificate. North Hurlburt owns and operates the Shepherds Flat North wind energy facility under an EFSC site certificate dated September 11, 2009, as amended on March 12, 2010. Of relevance to this proceeding is the following passage from the Shepherds Flat North site certificate:
The facility includes a collector substation. The facility includes a 230-kV transmission line between the substation and the interconnection site. The interconnection site is located at the Bonneville Power Administration Slatt Switching Station. See Delgado Decl. ¶¶ 26, 28 and Ex. 5 at 4 (EFSC, First Amended Site Certificate for Shepherds
Flat North (March 12, 2010) (emphasis supplied).3 Shepherds Flat North has “an average electric generating capacity of up to 106 megawatts and a peak generating capacity of not more than 318 megawatts that produces power from wind energy.” Id. at 3.
2 A FERC-regulated entity, established under the federal Energy Policy Act of 1992.
3 Also available at http://www.oregon.gov/energy/Siting/Pages/SFN.aspx.
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Shepherds Flat Central Site Certificate. South Hurlburt owns and operates the Shepherds Flat Central wind energy facility under an EFSC site certificate, also originally dated September 11, 2009, and also as amended on March 12, 2010. The EFSC site certificate designates the same, co-located interconnection site for Shepherds Flat Central: “The interconnection site is located at the Bonneville Power Administration Slatt Switching Station.” See Delgado Decl. ¶ 28 and Ex. 5 at 8 (EFSC, First Amended Site Certificate for Shepherds Flat Central) (March 12, 2010) (emphasis supplied).4 Shepherds Flat Central has “an average electric generating capacity of up to 97 megawatts and a peak generating capacity of not more than 290 megawatts that produces power from wind energy.” Id. at 7. Shepherds Flat South Site Certificate. Horseshoe Bend owns and operates the Shepherds Flat South wind energy facility under an EFSC site certificate, also originally dated September 11, 2009, and also as amended on March 12, 2010. The EFSC site certificate designates the same, co-located interconnection site for Shepherds Flat South: “The interconnection site is located at the Bonneville Power Administration Slatt Switching Station.” Delgado Ex. 5 at 12 (EFSC, First Amended Site Certificate for Shepherds Flat South (March 12, 2010) (emphasis supplied).5 Shepherds Flat South has “an average electric generating capacity of up to 97 megawatts and a peak generating capacity of not more than 290 megawatts that produces power from wind energy.” Id. at 11. As they are legally required under ORS Chapter 469, North Hurlburt, South Hurlburt and Horseshoe Bend each constructed and operates its own wind energy facility in accordance with its EFSC site certificate. Delgado Decl. ¶ 27. Of pertinence here, each facility is interconnected to the Bonneville Power Administration (“BPA”) transmission system, at 230-kV, within BPA’s Slatt Substation. Id.
4 Also available at http://www.oregon.gov/energy/Siting/Pages/SFC.aspx.
5 Also available at http://www.oregon.gov/energy/Siting/Pages/SFS.aspx.
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C. The Interconnection of Each Wind Resource Within BPA’s New Slatt Substation At the time wind energy development was proposed at the Shepherds Flat sites, before any EFSC site certificate was issued, there was no electrical substation and no 230-kV transmission line in existence that might interconnect any projects of these sizes to the BPA transmission system. No such facilities existed in the service territories of either Pacific Power or the Cooperative. BPA had to construct new facilities, which it did adjacent to its existing Slatt Switching Station. BPA called its new substation “Slatt Substation,” which contains a new 500/230-kV transformer that allows electrical output from each of the three wind energy facilities to be stepped up from the 230-kV voltage specified in each facility’s EFSC site certificate to the 500-kV voltage of the BPA transmission system in this area. Delgado Decl. ¶¶ 8-12. The BPA environmental assessment of Slatt Substation was published in the Federal Register, 75 F.R. 64296 (October 19, 2010). “To provide the interconnection, BPA is in the process of expanding its Slatt Substation to accommodate a 230-kilovolt (kV) yard and will provide transmission access for up to 846 MW from the Wind Project to the BPA 500-kV transmission system.” Id., at 64297 (footnote omitted). It is undisputed in this case that Slatt Substation is physically located within the exclusive retail service territory of Pacific Power.
D. The Lack of Other Electrical Interconnections and Transmission Lines The rural area occupied by the three wind energy facilities has no significant electrical loads. It is undisputed in this case that there are no 230-kV transmission facilities in the area owned by the Cooperative, other than part of the Shepherds Flat South internal 230-kV line that connects only to Slatt Substation and is electrically isolated from Columbia Basin. Indeed, the Cooperative neither owns nor operates any 230-kV transmission line or other facility with which it might connect to this Shepherds Flat South internal 230-kV line. See Delgado Decl. ¶¶ 73-74.
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E. The Station-Service Requirements of the Wind Energy Generation Facilities
This case concerns the “station-service” requirements of the wind energy facilities. Station service relates to the power consumed by the operation of pumps, heaters, battery chargers, electrical control equipment, motors, and computers, and associate electrical losses, in a power plant. It is a parasitic, consumptive load. See Delgado Decl. ¶¶ 58-62. Power plants have at least nominal station-service power requirements even when they are not in production. Individually, the station-service requirements of each of these three wind-energy facilities is under 2 MW. See Delgado Decl. ¶ 61. North Hurlburt, South Hurlburt and Horseshoe Bend each self-supply their own station-service requirements. At times when the winds are particularly low (which varies across the land area occupied by the three wind resources), however, each project may have an intermittent need to supplement its own station power supply with external supplies. In other words, each resource owner/operator must keep its computers running and its navigational warning beacons flashing even when the local winds are becalmed. See Delgado Decl. ¶ 62. By design in accordance with both EFSC and BPA requirements, the only Point of Interconnection (“POI”) at which any resource can take delivery of externally supplied station power is Slatt Substation, the same 230-kV POI at which each resource owner delivers the electrical output of its wind resource to BPA for delivery to the long-term energy customer of each resource. There is no other 230-kV transmission line or substation through which power might flow, either into or out of any of these resources. The revenue metering for each facility has the bi-directional capability, allowing the discrete measurement of both the outgoing wind energy delivered, at 230-kV, into the BPA transmission system at Slatt Substation, and the incoming station-service power, also at 230-kV, and also delivered at Slatt Substation. All of
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this is covered in each resource owner/operator’s individual Large Generator Interconnection Agreement (“LGIA”) with BPA.6 See Delgado Decl. ¶¶ 18, 31-32, 38-39, 45-46, 63-67. As required by BPA’s design specifications under each LGIA, all three resources are connected into Slatt Substation via a single 230-kV ring-bus, and two 230-kV connector lines, which North Hurlburt, South Hurlburt and Horseshoe Bend hold in common. Delgado Decl. ¶¶ 32, 39, 46. Caithness has no ownership interest in these 230-kV facilities under the LGIAs or any other agreement. See Delgado Decl. ¶ 69.
F. The External, Intermittent Back-Up Supply Of Station Power to each of the Three Wind Energy Facilities within Slatt Substation North Hurlburt, South Hurlburt and Horseshoe Bend each back-up their self-supply of station power with intermittent external supplies, delivered to them via their respective 230-kV POIs within Slatt Substation. From there, exclusively by means of their jointly and individually owned project facilities, they consume this power in satisfying their respective station-power requirements, inverse to the ebb and flow of local winds across the lands occupied by their individual wind resources. BPA is prohibited by statute from selling power at retail. See Delgado Decl. ¶¶ 60-66. Pacific Power is the back-up supplier because delivery is made within Slatt Substation, physically located within Pacific Power’s exclusive retail service territory. See Declaration of Chuck Phinney in Support of PacifiCorp’s Motion for Summary Determination (Phinney Decl.) ¶ 7. This arrangement with Pacific Power has met the station-service power needs of all three facilities since their completions more than two years ago. Under this arrangement, North Hurlburt, South Hurlburt and Horseshoe Bend each take delivery from PacifiCorp at their respective 230-kV points of interconnection within Slatt Substation. Delgado Decl. ¶ 67.
6 BPA’s LGIA is standardized, based on a FERC prototype agreement. See BPA Open Access Transmission Tariff, Attachment L: Standard Large Generator Interconnection Procedures (LGIP), Appendix 6, “Standard Large Generator Interconnection Agreement.” This document may be found at: www.bpa.gov/transmission/Doing%20Business/Tariff/Pages/default.aspx.
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PacifiCorp has agreed to aggregate the demands of all three resources for billing purposes under a single Schedule 47 retail contract. Aggregation of demand is economically advantageous to all three resource owners. Delgado Decl. ¶ 68. Caithness, acting as billing facilitator for its three affiliates, is the signatory on the agreement with PacifiCorp and receives the monthly bill. The bill is divided up, in accordance with Pacific Power’s Schedule 47 rates with aggregated demand charges and pro rata divisions among its affiliates, with each resource’s individual energy charged to its individual owner, with no mark-up to Caithness. Caithness performs this administrative role solely for its three affiliates. See Delgado Decl. ¶¶ 68-70.
G. Locations of the Three Facilities The (confidential) map and diagram attached as Exhibit 6 to the Delgado Declaration depicts the location of the three facilities. The Slatt Substation interconnection point, transmission lines and ring-bus for all three projects are located in Pacific Power’s service territory.7 The entire Shepherds Flat North facility (owned by North Hurlburt) also is entirely
within Pacific Power’s exclusive service territory. Shepherds Flat Central (owned by South
Hurlburt) has facilities in both Pacific Power’s and CBEC’s territories. Shepherds Flat Central’s
interconnection point, collector substation, transmission line and a significant number of its
turbines are located in Pacific Power’s service territory, while some of the turbines are located in
the territory claimed by CBEC. However, every one of Shepherds Flat Central’s turbines is
electrically isolated from the Cooperative, which has no means of serving them from any facility
within its claimed territory. Shepherds Flat South (owned by Horseshoe Bend) similarly has
facilities in both Pacific Power’s and CBEC’s territories. Its interconnection point and a portion
7 In response to a data request, Columbia Basin identified the border between PacifiCorp and Columbia Basin’s territory as is relevant to this proceeding. See Delgado Declaration Exhibit 8 at 45-46 (confidential).
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of its transmission line are within Pacific Power’s territory, while its collector substation,
turbines and the remaining section of the transmission line are within CBEC’s claimed territory.
As with Shepherds Flat Central, every one of Shepherds Flat South’s turbines is electrically
isolated from the Cooperative. See Delgado Decl. ¶¶ 43, 50 and Ex. 6.
H. Dealings With Columbia Basin Columbia Basin has no way of providing 230-kV back-up station power to any of the three wind resources from anywhere in its claimed territory because it neither owns nor operates any 230-kV facilities anywhere in that territory. However, it seeks to prevent PacifiCorp from supplying back-up power for delivery to each wind resource within PacifiCorp service territory, at Slatt Substation. During discovery Columbia Basin refused to specify how or where it would make such 230-kV delivery to any Caithness Defendant. It did, however, acknowledge that “Columbia
Basin Electric Cooperative’s system does not include any 230 kV lines, substations, or other facilities
at this time.” Delgado Ex. 8 at 2 (CBEC response to NHW Data Request No. 4). When asked where, and at what voltage it could make such delivery, it responded: “Columbia Basin has not done this analysis as the analysis depends on the outcome of this proceeding.” Id. at 5 (CBEC response to NHW Data Request No. 8(a)).8 It is important to bear in mind that the station power requirements of all three wind resources combined is under 5 MW, meaning that the individual station power load of each wind resource is less than 2 MW. Due to the intermittent need to augment each resource’s internal self-supply, the load factor of back-up station power is only about 22 percent. Delgado Decl. ¶¶ 61-62. It is intuitively obvious that no one could justify, either economically or
8 After providing Columbia Basin with extensive and detailed information about the three wind projects in response to Columbia Basin’s data requests, the Caithness Defendants renewed their request for Columbia Basin to provide information about how it even could provide the requisite service to South Hurlburt and Horseshoe Bend. Columbia Basin again refused to provide such information, asserting it was not available. See Delgado Ex. 8 at 22-25.
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environmentally, construction of new 230-kV lines, transformers or substations that would be necessary to serve this small load. Although Columbia Basin has been circumspect about it during discovery, it may be that it hopes to invade PacifiCorp’s exclusive service territory by attempting to sell power at retail at Slatt Substation. However, as addressed further below, this would violate ORS 758.400 – 758.465, at least in the absence of an agreement between Columbia Basin and PacifiCorp executed in accordance with ORS 758.410. No such agreement exists. See Phinney Decl. ¶ 19. These facts matter to the Caithness Defendants because Columbia Basin previously indicated that it would deny service under its generally applicable rates, instead imposing a much higher and discriminatory rate. Although in discovery Columbia Basin still refuses to specify the particulars of the discriminatory charges it envisions, the Caithness Defendants used the limited information actually provided earlier to determine that Columbia Basin intends to increase their costs by as much as $100,000 per year, $3,000,000 over the economic lives of their respective wind resources. Delgado Declaration ¶¶ 81-82. Columbia Basin would also deny them the economic benefits of demand aggregation for billing purposes, as now allowed by PacifiCorp. Neither South Hurlburt nor Horseshoe Bend intend to allow themselves to be subjected to such exploitation by becoming a Cooperative member regarding any station power load. Id. ¶ 84.
III. LEGAL STANDARD Summary determination is appropriate where there is no genuine issue of material fact and the moving party is entitled to prevail as a matter of law. ORCP 47C; see OAR 860-001- 0000(1) (applying ORCPs to contested cases).
IV. ARGUMENT
A. The Caithness Defendants are not in violation of the Territorial Allocation Law. The premise of Columbia Basin’s complaint is that the defendants are in violation of the Territorial Allocation Law (and, by extension, the exclusive territory orders of the Commission that were adopted pursuant to that law). Accordingly, this case begins with an analysis of the
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law’s requirements. Interpreting the meaning of a statute requires, first and foremost, “examining the text of the statute in context, along with any relevant legislative history.” Oregon Cable Telecomms. Ass’n v. Dept. of Revenue, 237 Or App 628, 634 (2010) (citing State v. Gaines, 346 Or 160 (2009)) (emphasis added). That analysis confirms that the Caithness Defendants are not in violation of the law or the Commission’s orders for two reasons. First, they are expressly exempt from the law as providers of wind resources. And second, even if the exemption did not apply to them the Caithness Defendants cannot be in violation of the law because they are not providing utility service.
1. Each of the Caithness Defendants Is Exempted from the Territorial Allocation Law Under the Express Language of ORS 758.450(2) and 758.450(4)(c). ORS 758.450 describes the activities restricted under the Territorial Allocation Law. However, that statute contains clear exceptions and exemptions, one of which applies here. To set the stage, ORS 758.450(2) begins with the following proviso: “except as provided in subsection (4) of this section.” This “subsection (4)” is codified as ORS 758.450(4) and provides as follows:
(4) The provisions of ORS 758.400 to 758.475 do not apply to any corporation, company, individual or association of individuals providing heat, light or power: . . . (c) From solar or wind resources to any number of customers;
Under the plain language of this statute, the Caithness Defendants are exempt from the Territorial Allocation Law. North Hurlburt, South Hurlburt and Horseshoe Bend provide power from wind resources to a customer – that is their entire business model. Delgado Decl. ¶6. CSF is simply their parent company, but it too was established for the purpose of developing and managing wind resources that provide power to customers. Delgado Decl. ¶ 7. Accordingly, under the plain language of the proviso in ORS 758.450(2)), and the exemption specified in ORS 758.450(4)(c), the Territorial Allocation Law has no applicability to this case.
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That result is consistent with the Legislature’s creation of the exemption, which was to provide a “lift” to solar and wind development. See Green Declaration Ex. 1. The Legislature intended to promote the development of wind and solar energy, and enactment of ORS 758.450(4)(c) was one of the ways it achieved that objective. 9 It is important to note that wind energy corporations, companies, individuals and associations of individuals are all exempted as entities under this statute. This exemption covers all their activities relating to wind or solar energy. If the Legislature had wanted to limit the ORS 758.450(4)(c) exemption to only certain activities, instead of this broad language, it would have done so with a more limited wording of that provision. However, it chose instead to provide the Caithness Defendants, and other wind and solar companies, a very broad exemption that bars the Cooperative’s complaint. Each Caithness Defendant is exempt from the Territorial Allocation Law. Thus, when North Hurlburt, South Hurlburt and Horseshoe Bend followed the BPA and EFSC requirements by building the commonly owned ring bus and 230-kV lines connecting that ring bus to BPA at Slatt Substation, as described in Delgado Declaration, they were acting as exempt companies under ORS 758.450(4)(c). Similarly, when all four Caithness Defendants arranged the economically beneficial aggregation of demands, for billing purposes, under a single station-power, back-up agreement with Pacific Power, as described in Delgado Declaration ¶ 68, they were also acting as exempt companies under ORS 758.450(4)(c). / / / / / / / /
9 Another legislative “lift” is the exclusion of wind-power and solar companies from the definition of “public utility” under ORS 757.005(1)(b)(C)(iii).
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2. Even Aside from their Exemption under ORS 758.450(4)(c), the Caithness Defendants are in Compliance with the Territorial Allocation Law because they do not provide “utility service.”
a. In the context of ORS 758.400, the Caithness Defendants do not provide “service” to another, and do not distribute electricity through a “connected and interrelated distribution system.” Columbia Basin asserts that the defendants are in violation of ORS 758.450(2), which provides that in a service territory allocated to a particular person – except, importantly, as otherwise provided in the statute – no other person “shall offer, construct or extend utility service in or into an allocated service territory.” “Utility service” is a defined term in ORS 758.400, which provides: As used in ORS 758.015 and 758.400 to 758.475 unless the context requires otherwise: (3) “Utility service” means service provided by any equipment, plant or facility for the distribution of electricity to users or the distribution of natural or manufactured gas to consumers through a connected and interrelated distribution system. “Utility service” does not include service provided through or by the use of any equipment, plant or facilities for the production or transmission of electricity or gas which pass through or over but are not used to provide service in or do not terminate in an area allocated to another person providing a similar utility service.
ORS 758.400(3) (emphases added). There are three notable aspects of this definition. To begin, the definition itself emphasizes the requirement of assessing context in determining whether something meets the definitions of providing “utility service.” As addressed below, that context plays a key role in the analysis here. Second, “utility service” is defined in terms of “service provided . . . to users.” Accordingly, to be providing electrical “utility service” under the statute, a party must be providing service to others (plural) who use the electricity. The action of obtaining electricity for one’s own purposes, and then consuming that electricity, is not “utility service.” Otherwise, everyone would be deemed to be providing utility service merely by turning on a television or computer, or by flicking on a light switch. Page 19 – CAITHNESS DEFENDANTS’ MOTION FOR SUMMARY DETERMINATION
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Third, the statutory definition of “utility service” refers to “distribution of electricity . . . through a connected and interrelated distribution system.” Like “service,” “distribution” and “connected and interrelated” are undefined terms that together produce a variety of dictionary meanings. See, e.g., Webster’s Third New Int’l Dictionary at 480, 660, 1182 and 2075 (1961). What is clear, however, is the Legislature’s decision to include the limiting phrase “through a connected and interrelated distribution system” reflects the intent to narrow the law’s application to the act of disseminating electricity to others, solely through an integrated distribution grid, rather than through an isolated system that does not serve other entities or form an integrated transmission system. Notably, this concept finds a parallel in federal energy regulation, in which limited and discrete facilities are often exempted from Open Access Transmission Tariff requirements. Here, FERC has already determined that the facilities at issue are “limited and discrete facilities that do not constitute an integrated transmission system.” See 135 FERC ¶ 61,251 (Delgado Ex. 7 at 6); Delgado Decl. ¶¶ 33, 40, 47. Were it otherwise, then every Oregon mill, factory and hospital with multiple buildings on the same site would be deemed to operate a “connected and interrelated distribution system” as it moved electricity between its own buildings for its own consumption within them. Combined, these definitions compel the conclusion that none of the Caithness Defendants are providing utility service, and certainly do not offer, construct or extend “utility service” in or into Columbia Basin’s allocated territory. There is no dispute that PacifiCorp provides electrical service to facilities jointly owned by the three wind projects at a point of interconnection at the Slatt substation, which is located entirely within PacifiCorp’s exclusive service territory. After delivery from PacifiCorp, the wind projects transmit the electricity over their own, internal 230-kV facilities to their individually-owned substations for consumption whenever local winds are inadequate to meet the needs of their individually-owned project electrical machines, computers and lighting. See Delgado Decl. ¶¶ 31-32, 38-39, 45-46, 62-70; Phinney Decl. ¶ 7.
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This arrangement does not fit the meaning of “utility service” for two separate reasons. First, the arrangement does not contemplate providing a service to anyone: the three wind projects simply use facilities either individually or jointly owned, solely among themselves, to transport electricity for their own end-use, just as contemplated under their individual Site Certificates and their individual LGIAs with BPA. They are not providing service to anyone. Second, the arrangement does not provide “distribution of electricity to users . . . through a connected and interrelated distribution system.” Rather, the wind projects merely transport electricity through internally-controlled facilities for their own individual end-use. Even if the projects’ acquisition and use of electricity were to be considered “distribution,” it would not be distribution through a “connected and interrelated distribution system.” There can be no issue of material fact that the mechanism by which they obtain electricity is used solely for their own internal purposes. Indeed, as noted above, FERC has ruled that the same facilities at issue “are limited and discrete facilities that do not constitute an integrated transmission system.” See Delgado Decl. ¶¶ 33, 40, 47.
b. In the context of ORS 758.400, the Caithness Defendants do not provide “utility service” in an area allocated to another person providing a similar utility service. Moreover, even if the Caithness Defendants could otherwise fit within the first sentence definition of providing “utility service” in ORS 758.400, the statute’s second sentence negates any such conclusion. That sentence reads: “Utility service” does not include service provided through or by the use of any equipment, plant or facilities for the production or transmission of electricity or gas which pass through or over but are not used to provide service in or do not terminate in an area allocated to another person providing a similar utility service.
ORS 758.400(3) (emphasis added). “Similar” utility service is not defined in the statute. But it is common practice to distinguish between the provision of high and low voltage electricity. See Delgado Decl. ¶ 48 (discussing low voltage service requirements). The reason is that the different utility services require different infrastructures. Service at 230 kilovolts is distinctly
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different from service at 120/240 volts. Any attempt to serve a 230-kV load at 120/240 volts, or vice versa, would have catastrophic consequences for both utility and end-user. Reading these two disparate services as “similar” is to improperly read the word “similar” right out of the statute despite it having been put there by the Oregon Legislature. See Brown v. Hackney, 228 Or App 441, 448 (2009) (“That construct would conflict with legislative directives that the office of the judge is to interpret statutes so as to give meaning to every word and that we shall not omit what has been inserted.”). The facts of this case reflect these differences. By design, reflecting BPA and EFSC requirements, the station power required by the wind projects must travel along the same 230-kV transmission lines that are used to transport the wind projects’ energy output to the BPA transmission grid, to be delivered at one point of interconnection at Slatt Substation. Delgado Decl. ¶ 63. Columbia Basin simply does not have the facilities necessary to supply such power, and has repeatedly acknowledged this fact. Delgado Decl. ¶¶ 73-74. Indeed, Columbia Basin has no 230-kV transmission facilities on its entire system. Delgado Dec. ¶¶ 73-74. It simply does not have the facilities necessary to do so, and there is no other provider of a similar service in its territory. In contrast Columbia Basin does have the facilities necessary to provide low-voltage retail power, and in fact does provide this form of “utility service” to Horseshoe Bend: by means of a standard 120/240-volt connection, Columbia Basin provides low-voltage power to the Shepherds Flat South maintenance building. Delgado Decl. ¶ 48. Such service is of an entirely different nature than that required for station power, as reflected in this case. In short, Columbia Basin is not providing a “similar utility service.”
c. The case law interpreting the Territorial Allocation Law does not support Columbia Basin’s position. Based on its Complaint, Columbia Basin is likely to rely on Northwest Natural Gas Co. v. Public Utility Comm’n, 195 Or App 547 (2004), in which the Court of Appeals addressed a
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similar – but notably different – issue. There, unaffiliated consumers had jointly constructed a “condominium” pipeline for the express, singular purpose of “bypassing” Northwest Natural’s distribution mains and obtaining gas service from an interstate pipeline running through Northwest Natural’s allocated territory. They intended to cease the service that Northwest Natural had been providing each of them. The bypass pipeline connected to the interstate pipeline within the allocated territory, and had its delivery tap points with the various consumers within that same allocated territory. See id. at 550-51. Although the OPUC recognized that such an arrangement was consistent with the purpose of the Territorial Allocation Law, the Court of Appeals ordered remand for further consideration, holding that OPUC’s interpretation did not adequately consider whether the consumers were covered entities providing utility service under the statute’s definitions. Id. at 556-59. The case settled after remand, so the ultimate disposition was never considered again by the court. See In The Matter of Northwest Natural Gas Co., DR 23, Order No 06-038 (Or PUC Jan 30, 2006). Most notable about this opinion are the facts that distinguish it from the present case. Those distinctions are many; all are compelling. First, and foremost, is the glaring distinction that Northwest Natural Gas Co. did not involve any company exempted from the Territorial Allocation Law under ORS 758.450(4)(c). As the court observed in its opinion,
ORS 758.450(4) establishes four exceptions to the prohibition, none of which applies to this case.
195 Or App at 551 n. 2. This case is different because ORS 758.450(4) does apply to exempt the Caithness Defendants. See Section IV.A.1, supra. Thus, Columbia Basin cannot satisfy this Commission’s four-part conjunctive test of proving a violation of the Territorial Allocation Law, as that test was summarized by the Court of Appeals in Northwest Natural Gas Co.:
… there are four elements to prove a violation of ORS 758.450:(1) the entity must be a ‘‘person’’ or ‘‘persons’’ as defined in ORS 758.400(2); (2) the arrangement must involve ‘‘utility service’’ as defined in ORS 758.400(3); (3) the utility Page 23 – CAITHNESS DEFENDANTS’ MOTION FOR SUMMARY DETERMINATION
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service must be in an allocated territory; and (4) none of the exemptions in ORS 758.450(4) can apply.
195 Or App at 553 (emphasis supplied). Regardless of whatever else Columbia Basin may claim, it cannot satisfy the fourth prong of this conjunctive test. Second, the court observed that no party disputed that a business could connect directly with the interstate pipeline for its own needs without running afoul of the Territorial Allocation Law, provided it did not do so together with an unaffiliated entity. 195 Or App at 557. Here, Columbia Basin’s own pleading reflects that North Hurlburt, South Hurlburt and Horseshoe Bend are all subsidiaries of CSF, the contract counterparty of PacifiCorp. See Am. Compl. Ex. 2 at 3; Delgado Decl. ¶¶ 7, 68. There is no dispute that the electricity provided by PacifiCorp is used solely for the internal needs of the three Caithness wind projects of the affiliated entities. The Territorial Allocation Law does not apply to such internal usage.10 Even if the three subsidiary companies of CSF were considered unaffiliated users of electricity under the Territorial Allocation Law, the result would be the same. As the court explained, it is the “physical act of distribution to more than one user of electricity . . . that constitutes utility service.” 195 Or App at 558. Here, there was no “physical act of distribution to more than one user” within Columbia Basin’s territory. Instead, each wind project obtains back-up electricity from PacifiCorp within PacifiCorp’s territory, not in the territory claimed by the Cooperative. Each wind resource then transmits that power for its own end-use consumption. All of North Hurlburt’s electricity is consumed within PacifiCorp’s territory, begging the question of why it is a named party. Delgado Decl. ¶¶31-33. From the jointly owned ring-bus in
10 The contrast with Northwest Natural is all the more evident in the court’s description of the “condominium bypass” at issue there: “an arrangement that requires separate entities join together to create a different entity, which owns the bypass pipeline and jointly administers it, appointing one or more of its members for that purpose.” 195 Or App at 557. Here, the record evidence is undisputed that the owners of the three wind projects own the shared facilities, and are all subsidiaries of CSF. There is no formation of a separate association by non-affiliated businesses here.
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PacifiCorp’s territory, South Hurlburt transmits electricity from its individually owned electrical line to its individually owned substation, which too is located in PacifiCorp’s service territory. South Hurlburt then individually transmits that back-up electricity within its own project, for its project’s own consumption when local winds are low. See Delgado Decl. ¶¶ 38-40. Likewise, from the jointly owned ring-bus in PacifiCorp’s territory, Horseshoe Bend transmits electricity from its individually owned electrical line that begins in PacifiCorp’s territory to its individually owned substation in Columbia Basin’s territory, for use in its project’s own purposes. See Delgado Decl. ¶¶ 45-47. Third, in Northwest Natural Gas Co., the court seemed concerned “[t]he PUC found that it was likely that the owner of one of the bypass pipelines would offer service on these conditions to five other nearby industrial customers of Northwest.” 195 Or App at 551 n.1. This case is different. North Hurlburt, South Hurlburt and Horseshoe Bend do not believe they could “offer service” to such non-affiliated customers without first obtaining amendments to their respective Site Certificates by EFSC. If North Hurlburt, South Hurlburt or Horseshoe Bend ever sought such an amendment, Columbia Basin could raise its concerns with EFSC. Fourth, it is also significant and indisputable that the acquisition of back-up electricity by the Caithness defendants does not occur in Columbia Basin’s claimed territory. Compare Northwest Natural Gas Co., 195 Or App at 550-51 (“[t]he condominium bypass distribution system is located within [Northwest’s] allocated territory and in an area served by distribution facilities owned and operated by [Northwest].’’) Instead, back-up power for each of the three wind resources is delivered to them in Pacific Power’s service territory, at Slatt Substation. That fact rebuts any comparison that Columbia Basin may otherwise attempt to draw to the Northwest Natural decision, which contemplated non-affiliated consumers acquiring gas from an interstate pipeline within Northwest Natural’s service territory. In contrast here, the three wind projects obtain the electricity outside of Columbia Basin’s territory. One (North Hurlburt) does not consume any electricity at all in Columbia Basin’s territory. The other two
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transmit the energy for their own individual projects through their own individually owned electrical lines. While some of the support facilities within Columbia Basin’s territory are jointly owned between Horseshoe Bend and South Hurlburt – by design and as mandated by their EFSC site certificates and FERC approved shared facilities agreement – all electrical lines in Columbia Basin’s territory are individually owned. See Delgado Decl. ¶¶ 32, 39. Such a process is permissible, as contemplated by the Court of Appeals. 195 Or App at 557.11 No facilities were constructed or operated for the purpose of bypassing anyone; instead, they were explicitly required by BPA as a condition of being connected to the BPA transmission system, and by EFSC in each of their individual Site Certificates. Receiving back-up station power is not the sole purpose of these facilities, which also move wind power to the BPA transmission system at Slatt Substation. Compare Northwest Natural Gas Co, 195 Or App at 550 (“The lateral pipelines have no functional value except as connected or related to the bypass pipeline.”). Moreover, the three wind resources, and their intermittent needs for back-up station power, are brand new. No load ever supplied by Columbia Basin has been “bypassed” under the arrangement that supplies each of them with back-up station power. See Delgado Decl. ¶ 55. Finally, it is worth noting that this case does not involve Columbia Basin’s “offer of discounted rates.” 195 Or App at 549. Far from it, Columbia Basin has refused to apply its generally applicable rates to any back-up load it captures. Instead, it would likely impose much higher rates that could increase the Caithness Defendants’ costs by $100,000 per year or more. Delgado Decl., Paragraph No. 82.
/ /
11 The court in Northwest Natural also declined to address whether the condominium bypass pipeline fit the definition of “connected and interrelated distribution system,” as required to fit within the definition of “utility service.” 195 Or App at 559-60.
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d. The Territorial Allocation Law’s stated Legislative Policy is consistent with the position of the Caithness Defendants. In Northwest Natural, the Court of Appeals faulted the OPUC’s reliance on the law’s stated purpose in determining its meaning, criticizing the OPUC’s reliance “on the policy issues that it discusses in the guise of considering the statutory context.” 195 Or App at 559 n.6; see also 195 Or App at 557 (recognizing statutory policy can provide context to a statute’s meaning, but does not inform the “ordinary meaning” of words in a statute). More recent appellate authority calls that criticism into doubt. A policy statement enacted into law provides context for interpretation of the law. Havi Group LP v. Fyock, 204 Or App 558, 564 (2006) (“Included in pertinent context are statements of statutory policy.”) Indeed, here, the statutory definition expressly requires that the context be considered in interpreting the definition of utility service, prefacing the definition with the phrase, “unless the context requires otherwise.” ORS 758.400. To define the “utility service” in ORS 758.450 to prevent three subsidiary wind projects from using their own facilities to obtain electricity outside of the allocated territory at issue for their own internal use is not supported by the context of the statute read as a whole. The law includes the stated legislative policy:
The elimination and future prevention of duplication of utility facilities is a matter of statewide concern; and in order to promote the efficient and economic use and development and the safety of operation of utility services while providing adequate and reasonable service to all territories and customers affected thereby, it is necessary to regulate in the manner provided in ORS 758.400 to 758.475 all persons and entities providing utility services.
ORS 758.405 (emphases added). This stated policy forms the context within which the text of ORS 758.450 and ORS 758.400 must be construed. Columbia Basin’s reading of the Territorial Allocation Law turns this purpose on its head. Columbia Basin’s interpretation would require either unreasonable or inadequate service to South Hurlburt and Horseshoe Bend, requiring costly new facilities for service through Columbia Basin. It would require duplication of utility facilities to provide that service, at additional cost and less efficiency. Moreover, it would require interpreting the Page 27 – CAITHNESS DEFENDANTS’ MOTION FOR SUMMARY DETERMINATION
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statutory definition of “similar utility service” to encompass types of service not even offered in the allocated territory – such as the high voltage 230-kV electricity mandated by the wind projects’ regulatory and contractual obligations. The more reasonable interpretation, as required by the law’s context, is that “utility service” as used in ORS 758.450 does not include the acquisition of electricity by affiliated entities outside of the allocated territory solely for their own internal use. That interpretation is consistent with the statutorily-declared policy of preventing duplication of utility facilities and the promotion of efficient and economic use and development of utility service. The more reasonable interpretation further requires interpreting Columbia Basin, whose “electrical transmission and distribution system” contains no 230-kV transmission facilities and no high voltage transmission lines of any voltage in the vicinity of either Shepherds Flat Central or Shepherds Flat South, see Delgado Decl. ¶¶73-74, and which has consistently refused to confirm on record the details of the rate and other charges it would impose for such a service, is not “providing a similar utility service.”
B. Columbia Basin’s Complaint is Barred because it is Untimely. Separately, Columbia Basin’s complaint should be dismissed because it simply comes too late. The time and opportunity for Columbia Basin to raise their concerns was years ago. Their delay has been prejudicial to the Caithness Defendants. Representatives for what have become the Caithness Defendants engaged in discussions with Columbia Basin no later than 2010 regarding station service power. Indeed, Columbia Basin’s manager wrote in 2012 that he had discussions about station service power regarding the proposed wind projects as far back as 2002, and “many times” in the decade that followed. Delgado Decl. ¶ 83 and Ex. 11 at 4. At the time, Columbia Basin informed Caithness that Columbia Basin did not have a retail electric rate for serving any portion of the wind projects, and did not expect to have one for more than a year. Delgado Decl. ¶ 79 and Ex. 11 at 2.
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PacifiCorp, in contrast, had a rate and took the position that it had the right to provide station service for all Caithness-related projects. Delgado Decl. ¶ 68. When Caithness informed Columbia Basin of this fact, Columbia Basin stated that it expected to challenge that position through the PUC. Delgado Decl. ¶ 83 and Ex. 2. But Columbia Basin failed to do so. Caithness thus went ahead in April, 2011 with entering into a contract with PacifiCorp for the station power needs. Id. Columbia Basin did not initiate this complaint until August 2013, more than three years after being put on notice of the issue. Columbia Basin’s conduct is thus subject to the laches doctrine, which has three elements: “(1) the plaintiff must delay asserting his claim for an unreasonable length of time (2) with full knowledge of all relevant facts, (3) resulting in such substantial prejudice to the defendant that it would be inequitable for the court to grant relief.” Rise v. Steckel, 59 Or App 675, 684 (1982). All three elements are met here. No later than 2010, Columbia Basin knew the parties’ general positions. At any time, it could have sought a declaratory ruling by this Commission. ORS 756.450. It had all the requisite knowledge necessary to get the fundamental legal issue decided by the Commission at that time. Yet it decided to wait an additional three years before filing this complaint. That delay has been unreasonable and prejudicial to the Caithness Defendants. The Caithness Defendants proceeded with their business operations on the assumption that the issue of station power was resolved, and are now faced with much more costly proceedings and the loss of control over confidential and proprietary business information. Columbia Basin has used this case to demand access to vast amounts of confidential and sensitive data that would not have been available to it (because it didn’t exist) if Columbia Basin had sought the Commission’s guidance in 2010. In particular, Columbia Basin has acquired multiple years of usage and financial data from the three wind projects and a large array of commercially sensitive agreements. The extensive discovery has turned this case into a very expensive litigation matter
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for the Caithness Defendants that simply would not have happened if Columbia Basin had raised the issue earlier. Columbia Basin’s delay in raising the issue now before the commission is all the more prejudicial because Columbia Basin stood by silently while the EFSC and BPA proceedings established the method and location for the wind projects’ interconnection. Since 2006, when the predecessor to the Caithness Defendants filed a notice of intent for the development of what became the three wind projects, it has been a matter of public record where the projects intended to interconnect to the BPA transmission system: next to Slatt switching station. See Green Declaration Exhibit 2. For years, and at considerable expense, Caithness navigated the interconnection process with BPA, on the one hand, and siting of the project through EFSC. Delgado Decl. ¶¶ 19-29. Those proceedings established the method and location for interconnection as well as the specific outline for the siting of all the requisite transmission facilities. Those processes were public, with multiple opportunities for public comment. Delgado Decl. ¶¶13-16, 28-29. Yet Columbia Basin never commented. Despite knowing that the proposed interconnection point for all three projects was in PacifiCorp’s territory, over the use of new facilities as they exist today, pursuant to the EFSC siting certificates, and despite having conversations (according to Columbia Basin’s own manager) about station power for the project(s) since 2002, Columbia Basin failed to raise the issue in the official proceedings. Nor did it raise the issue then with this Commission. Instead, it remained silent as the Caithness Defendants and BPA spent billions of dollars siting and constructing facilities that Columbia Basin lately claims are inadequate. Such conduct is prejudicial and should not be condoned.
C. Columbia Basin’s Complaint is an Impermissible Collateral Attack on EFSC Jurisdiction.
Columbia Basin’s position further serves as an impermissible collateral attack on the EFSC proceedings. As noted, the Caithness Defendants obtained site certificates specifying how
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and where interconnection will occur. The certificate holders built the wind projects in accordance with those requirements – as required by law. Columbia Basin’s complaint seeks to undermine that regulatory mandate. ORS 469.401(3) provides: Subject to the conditions set forth in the site certificate or amended site certificate, any certificate or amended certificate signed by the chairperson of the council shall bind the state and all counties and cities and political subdivisions in this state as to the approval of the site and the construction and operation of the facility.
Absent an agreement with PacifiCorp allowing Columbia Basin to offer service in its
territory, Columbia Basin has no means of servicing Horseshoe Bend’s or South Hurlburt’s high- voltage station service needs through the existing facilities approved through the EFSC
proceeding.12 In other words, Columbia Basin’s position would require the modification of the site certificates for those two projects in order to enable the construction of new facilities in Columbia Basin’s territory. Not only is such a position economically wasteful and directly at odds with the stated purpose of the Territorial Allocation Law, it is also not something this Commission has jurisdiction to order. The site, construction and operation of the sited facilities as specified in the Site Certificates are all in accordance with Oregon law and now binding on the Commission.
D. In any event, OPUC lacks statutory authority to enjoin end-user business activities or to abrogate Caithness’ contract with PacifiCorp
Finally, even if this Commission were to agree with Columbia Basin’s interpretation of the Territorial Allocation Law and that the Caithness Defendants are not exempt from the law, that Columbia Basin’s complaint is not untimely, and that the complaint does not constitute an impermissible attack on EFSC jurisdiction, the relief available is quite limited. As argued by PacifiCorp (and incorporated here), this Commission lacks authority to award Columbia Basin
12 PacifiCorp’s motion for summary determination addresses Columbia Basin’s lack of ability to serve the projects through Slatt Substation. The Caithness Defendants adopt that argument herein.
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damages or to enjoin the business activities of the end-users, such as the Caithness Defendants. See ORS 758.465. To the extent Columbia Basin seeks such relief, it must be denied.
V. CONCLUSION The Commission’s overarching statutory mission is consumer-protection, in balance with the rights of utility owners and investors. In this case, Columbia Basin’s existing customers and its owner/members are the same. Granting the Caithness Defendants’ motion will paradoxically benefit all of them by removing any incentive for Columbia Basin’s management to waste their money on the costly construction of new, duplicative transmission facilities in seeking to capture an unwilling, intermittent back-up load of less than 2 MW and about 22-percent load factor. For all the foregoing reasons, the Caithness Defendants request this Commission grant it summary determination on all of Columbia Basin’s claims. DATED this 6th day of October, 2014.
DAVIS WRIGHT TREMAINE LLP
By: John A. Cameron, OSB #92873 Derek D. Green, OSB #042960 Tel: 503-241-2300 Fax: 503-778-5299 Email: [email protected] Email: [email protected] Of Attorneys for Defendants North Hurlburt Wind, LLC, South Hurlburt Wind, LLC, Horseshoe Bend Wind, LLC and Caithness Shepherds Flat, LLC
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CERTIFICATE OF FILING AND SERVICE
Docket No. UM 1670 I hereby certify that on the date given below the original and one true and correct copy(ies) of the foregoing MOTION FOR SUMMARY DETERMINATION OF DEFENDANTS NORTH HURLBURT WIND, LLC, SOUTH HURLBURT WIND, LCC, HORSESHOE BEND WIND, LLC AND CAITHNESS SHEPHERDS FLAT, LLC were sent by email and first-class mail to:
Public Utility Commission of Oregon 3930 Fairview Industrial Drive SE PO Box 1088 Salem, OR 97308-1088 E-mail: [email protected]
On the same date, a true and correct copy of the foregoing document was sent to the following parties at the contact information as indicated on the attached Service List as follows: by electronic mail on the date set forth below; and/or by mailing a copy thereof in a sealed, first-class postage prepaid envelope, addressed to said party’s last-known address and deposited in the U.S. Mail at Portland, Oregon on the date set forth below. DATED this 6th day of October, 2014.
DAVIS WRIGHT TREMAINE LLP
By: /s/ Derek D. Green John A. Cameron, OSB #92873 Derek D. Green, OSB #042960 Email: [email protected] Email: [email protected]
Of Attorneys for Defendants North Hurlburt Wind, LLC, South Hurlburt Wind, LLC, Horseshoe Bend Wind, LLC and Caithness Shepherds Flat, LLC
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UM 1670 SERVICE LIST
W = waives paper service
W W Thomas Wolff, Manager Dustin Till, Senior Counsel COLUMBIA BASIN ELECTRIC PACIFIC POWER COOPERATIVE, INC. 825 NE Multnomah, Suite 1800 P O Box 398 Portland, OR 97232 Heppner, OR 97836-0398 Email: [email protected] Email: [email protected]
W W Charles N. Fadeley Oregon Dockets Attorney at Law Pacificorp, dba Pacific Power P. O. Box 1408 825 NE Multnomah St., Suite 2000 Sisters, OR 97759 Portland, OR 97232 Email: [email protected] Email: [email protected]
W W Raymond S. Kindley Ted Case, Executive Director KINDLEY LAW, PC OREGON RURAL ELECTRIC P O Box 569 COOPERATIVE ASSOCIATION West Linn, OR 97068 698 12th Street SE, Suite 210 Email: [email protected] Salem, OR 97301 Email: [email protected]
W W Thomas M. Grim Steve Eldrige Tommy A. Brooks Umatilla Electric Cooperative Assn. CABLE HUSTON P O Box 1148 1001 SW Fifth Ave., Suite 2000 Hermiston, OR 97838 Portland, OR 97204-1136 Email: [email protected] Email: [email protected] [email protected]
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DELGADO EXHIBIT 1 Page 1 of 2
U~ GOV!ONMU.. tNfQIU.,< ... TION '"'"'"'""'"9GPC? 61144 Federal Register/Val. 74, No. 224/Monday, November 23, 2009/Notices
the application. This filing is available forward, Kern River's proceeding will be provide copies of their protests only to for review at the Commission in the conducted in Docket No. CP10-14-000, the party or parties directly involved in Public Reference Room or may be as noted in the caption of this Notice. the protest. viewed on the Commission's Web site at Pursuant to section 157.9 of the Persons who wish to comment only http:!!www.ferc.gov using the Commission's rules, 18 CFR 157.9, on the environmental review of this "eLibrary" link. Enter the docket within 90 days of this Notice the project should submit an original and number excluding the last three digits in Commission staff will either: complete two copies of their comments to the the docket number field to access the its environmental assessment (EA) and Secretary of the Commission. document. For assistance, please contact place it into the Commission's public Environmental commentors will be FERC Online Support at record (eLibrary) for this proceeding; or placed on the Commission's [email protected] or toll issue a Notice of Schedule for environmental mailing list, will receive free at (866) 208-3676, or for TTY, Environmental Review. If a Notice of copies of the environmental documents, contact (202) 502-8659. Schedule for Environmental Review is and will be notified of meetings The Apex Expansion proposed issued, it will indicate, among other associated with the Commission's facilities include: (1) Approximately 28 milestones, the anticipated date for the environmental review process. miles of 36-inch-diameter pipeline to be Commission staffs issuance of the final Environmental commentors will not be constructed in an unlooped portion of environmental impact statement (FEIS) required to serve copies of filed Kern River's existing mainline system or EA for this proposal. The filing of the documents on all other parties. across the Wasatch Mountains in EA in the Commission's public record However, the non-party commentors northern Utah, in Morgan, Davis am! for this proceeding or the issuance of a will not receive copies of all documents Salt Lake counties, (2) three additional Notice of Schedule for Environmental filed by other parties or issued by the 16,000 !SO-rated horsepower (hp) Review will serve to notify Federal and Commission (except for the mailing of compressor units to be installed at state agencies of the timing for the environmental documents issued by the existing compressor stations: Coyote completion of all necessary reviews, and Commission) and will not have the right Creek in Uinta County, Wyoming; the subsequent need to complete all to seek court review of the Elberta in Utah County, Utah; and Dry Federal authorizations within 90 days of Commission's final order. Lake in Clark County, Nevada; (3) the date of issuance of the Commission The Commission strongly encourages restaging of three existing boost staffs FEIS or EA. electronic filings of comments, protests compressors, one at each of three There are two ways to become and interventions in lieu of paper using existing compressor stations: Coyote involved in the Commission's review of the "eFiling" link at http:// Creek, Elberta and Dry Lake; (4) this project. First, any person wishing to www.ferc.gov. Persons unable to file replacement of a boost compressor at obtain legal status by becoming a party electronically should submit an original Kern River's existing Fillmore to the proceedings for this project and 14 copies of the protest or compressor station in Millard County, should, on or before the comment date intervention to the Federal Energy Utah; and (5) the new Milford stated below, file with the Federal regulatory Commission, 888 First Street, Compressor Station with a single unit Energy Regulatory Commission, 888 NE., Washington, DC 20426. 30,000 ISO-rated hp compressor to be First Street, NE., Washington, DC 20426, Comment Date: December 7, 2009. constructed in Beaver County, Utah. a motion to intervene in accordance The proposed facilities will add a net with the requirements of the Kimberly D. Bose, 78,000 !SO-rated hp to the Kern River Commission's Rules of Practice and Secretary. system. Procedure (18 CFR 385.214 or 385.211) [FR Doc. E9-28017 Filed 11-20-09; 8:45am] The estimated total cost of the and the Regulations under the NGA (18 BILLING CODE 6717-o1-P proposed 2010 Expansion is $373 CFR 157.10). A person obtaining party million, which will be financed with a status will be placed on the service list combination of internally generated maintained by the Secretary of the DEPARTMENT OF ENERGY funds and new debt. Kern River Commission and will receive copies of proposes to charge incremental all documents filed by the applicant and Federal Energy Regulatory transportation rates and fuel by all other parties. A party must submit Commission reimbursement charges to Apex 14 copies of filings made with the Expansion shippers. Commission and must mail a copy to [EG09-76-000; EG09-8Q-OOO; EG09-81- Any questions regarding this 000; EG09-82-000; EG09-83--000; EG09- the applicant and to every other party in 84-000; EG09-85-000; EG09-86-000; application should be directed to the proceeding. Only parties to the EG09-87-000; EG09-88-QOO; EG09-89-000) Michael Loeffler, Senior Director, proceeding can ask for court review of Certificates and External Affairs, Apex Commission orders in the proceeding. Sollunar Energy, Inc.; Fowler Ridge II Expansion Project, Kern River Gas However, a person does not have to Wind Farm LLC; St. Clair Power, L.P.; Transmission Company, MidAmerican intervene in order to have comments North Hurlburt Wind, LLC; South Energy Pipeline Group, 1111 South considered. The second way to Hurlburt Wind, LLC; Horseshoe Bend 103rd Street, Omaha, Nebraska 68124, participate is by filing with the Wind, LLC; Ashtabula Wind II, LLC; Elk or (402) 398-7103. Secretary of the Commission, as soon as City Wind, LLC; FPL Energy Stateline On March 13, 2009, the Commission possible, an original and two copies of II, Inc.; FPL Energy Illinois Wind, LLC; staff granted Kern River's request to comments in support of or in opposition Silver Sage Windpower, LLC; Notice of utilize the National Environmental to this project. The Commission will Effectiveness of Exempt Wholesale Policy Act (NEP A) Pre-Filling Process consider these comments in Generator Status and assigned Docket Number PF09-7- determining the appropriate action to be 000 to staff activities involving the Apex taken, but the filing of a comment alone November 16, 2009. Expansion. Now, as of the filing Kern will not serve to make the filer a party Take notice that during the month of River's application on November 2, to the proceeding. The Commission's October 2009, the status of the above 2009, the NEPA Pre-Filling Process for rules require that persons filing captioned entities as Exempt Wholesale this project has ended. From this time comments in opposition to the project Generators became effective by Federal Register/Val. 74, No. 224/Monday, November 23, 2009/Notices 61145
'operation of the Commission's diameter pipelines connecting the avoid impacts on the various resource regulations at 18 CFR 366.7(a). proposed compressor station with the areas. existing dehydration plant. The Kimberly D. Bose, Our independent analysis of the compressor station will be Secretary. issues will be in the EA. Depending on approximately 5.5 acres and the the comments received during the [FR Doc. E9-28013 Filed 11-20-Q9; 8:45am] pipeline construction corridor will be scoping process, the EA may be BILLING CODE 6717-01-P 100-foot-wide. A new pond will be published and mailed to federal, state, constructed south of the compressor and local agencies, public interest DEPARTMENT OF ENERGY station to replace the existing pond that groups, interested individuals, affected will be filled during construction of the landowners, newspapers, libraries, and Federal Energy Regulatory compressor station. the Commission's official service list for Commission A location map depicting the this proceeding. A comment period will proposed facilities is attached to this be allotted for review if the EA is [Docket No. CP10-2-QOO] NO! as Appendix 1 .2 published. We will consider all Southern Star Central Gas Pipeline, The EA Process comments on the EA before we make Inc.; Notice of Intent To Prepare an our recommendations to the The National Environmental Policy Commission. Environmental Assessment for the Act (NEP A) requires the Commission to Proposed Elk City Storage Expansion To ensure your comments are take into account the environmental considered, please carefully follow the Project and Request for Comments on impacts that could result from ari action Environmental Issues instructions in the Public Participation whenever it considers the issuance of a section. November 16, 2009. Certificate of Public Convenience and The Federal Energy Regulatory Necessity. NEPA also requires us to Currently Identified Environmental Commission (FERC or Commission) is discover and address concerns the Issues in the process of preparing an public may have about proposals. This We have already identified issues that environmental assessment (EA) on the process is referred to as "scoping". The we think deserve attention based on our environmental impacts of the Elk City main goal of the scoping process is to previous experience with similar Storage Expansion Project (Project) focus the analysis in the EA on the projects in the region. This preliminary proposed by Southern Star Central Gas important environmental issues. By this list of issues, which is presented below, Pipeline, Inc. (Southern Star). Southern Notice of Intent, the Commission staff may be revised based on your comments Star has proposed to construct and requests public comments on the scope and our continuing analyses specific to operate a new natural gas compressor of the issues to address in the EA. All the Project. station in Montgomery County, Kansas, comments received are considered • Potential noise and vibration and amend the current operational plan during the preparation of the EA. State impacts from compressor station. for the existing natural gas storage field. and local government representatives • Air quality impacts from the The Notice of Intent (NOI) explains are encouraged to notify their compressor station. the scoping process that will be used to constituents of this proposed action and • Wetland and waterbody impacts. gather input from the public and encourage them to comment on their interested agencies on the Project. Your areas of concern. Public Participation input will help determine which issues In the EA we will discuss impacts that You can make a difference by will be evaluated in the EA. Please note could occur as results ofthe providing us with your specific that the scoping period for this Project construction and operation of the comments or concerns about the Project. will close on December 14, 2009. proposed project under these general Your comments should focus on the Comments on the Project may be headings: potential environmental effects, submitted in written form br • Geology and soils. reasonable alternatives, and measures to electronically, as described below. This • Water resources. avoid or lessen environmental impacts. NOl is being sent to Federal, State, and • Aquatic resources Vegetation and The more specific your comments, the local government agencies; elected wildlife. more useful they will be. To ensure that officials; affected landowners; • Threatened and endangered your written comments are timely and environmental and public interest species. properly recorded, please send in your groups; Indian tribes and regional • Land use, recreation, and visual comments so that they will be received Native American organizations; resources. in Washington, DC on or before· commentors and other interested • Cultural resources. December 14, 2009. • Socioeconomics. parties; and local libraries and Comments on the proposed Project newspapers. Wet encourage • Air quality and noise. • Reliability and safety. can be submitted to the FERC in written government representatives to notify form. For your convenience, there are their constituents of this proposed • Cumulative impacts. We will also evaluate reasonable three methods which you can use to Project and encourage them to comment submit your written comments to the on their areas of concern. alternatives to the proposed project or portions of the project, and make Commission. In all instances please Sununary of the Proposed Project recommendations on how to lessen or reference the Project docket number Southern Star proposes to construct a (CP10-2-000) with your submission. The three methods are: compressor station adjacent to an 2 The appendices referenced in this notice are not existing Southern Star dehydration printed in the Federai Register, but they' are being (1) You may file your comments plant and install two 450-foot, 30-inch provided to all those who receive this notice in the electronically by using the Quick mail. Copies of the NOI can be obtained from the Comment feature, which is located at Commission's Web site at the "eLibrary" link, 1"We", "us", and "our" refer to the Commission's Public Reference Room, or by calling http://www.ferc.govunder the link environmental staff of the Office of Energy Projects (202) 502--a371. For instructions on connecting to called "Documents and Filings". A (OEP). eLibrary, refer to the end of this notice. Quick Comment is an easy method for DELGADO EXHIBIT 2 Page 1 of 29
United States Department of Energy Bonneville Power Administration
Record of Decision for the Electrical Interconnection of the Shepherds Flat Wind Energy Project July 2008
INTRODUCTION
The Bonneville Power Administration (BPA) has decided to offer contract terms for interconnection of up to 846 megawatts (MW) of power to be generated by the proposed Shepherds Flat Wind Energy Project (Wind Project) into the Federal Columbia River Transmission System (FCRTS). Caithness Shepherds Flat, LLC (CSF) proposes to construct and operate the proposed Wind Project and has requested interconnection to the FCRTS. The Wind Project will be interconnected at BPA's existing Slatt Substation in Gilliam County, Oregon. To provide the interconnection, BPA will expand BPA's existing Slatt Substation to accommodate a 230-kilovolt (kV) yard and will provide transmission access for up to 846 MW from the Wind Project to BPA's 500-kV transmission system.
BPA's decision to offer terms to interconnect the Wind Project is consistent with BPA's Business Plan Final Environmental Impact Statement (BP EIS) (DOE/EIS-0183, June 1995), and the Business Plan Record of Decision (BP ROD, August 15, 1995). This decision thus is tiered to the BP ROD.
BACKGROUND
BPA is a federal agency that owns and operates the majority of the high-voltage electric transmission system in the Pacific Northwest. This system is known as the FCRTS. BPA has adopted an Open Access Transmission Tariff (Tariff) for the FCRTS, consistent with the Federal Energy Regulatory Commission's (FERC)proforma open access tariff. 1 Under BPA's tariff, BPA offers transmission interconnection to the FCRTS to all eligible customers on a first-come, first-served basis, with this offer subject to an environmental review under the National Environmental Policy Act (NEPA).
For all requests for interconnection of generating facilities that exceed 20 MW, BPA chooses to act consistently with FERC's Order 2003, Standardization ofLarge Generator Interconnection Agreement and Procedures, and Order 661, Interconnection for Wind Energy, as adopted by BPA and incorporated, with FERC approval, into BPA's Tariff. Order 2003 established the
1 Although BPA is generally not subject to FERC's jurisdiction, BPA follows the open access tariff as a matter of national policy. This course of action demonstrates BPA's commitment to non-discriminatory access to its transmission system and ensures that BPA will receive reciprocal and non-discriminatory access to the transmission systems of utilities that are subject to FERC's jurisdiction.
Bonneville Power Administration 1 DELGADO EXHIBIT 2 Page 2 of 29
Record ofDecision for the Electrical Interconnection of the Shepherds Flat Wind Energy Project
Large Generator Interconnection Procedures (LGIP) and Large Generator Interconnection Agreement (LGIA), which provide a uniform process for offering interconnection to any generating facilities exceeding 20 MW. Order 661 contains additional standardized processes and technical requirements specific to interconnection of wind generators. BP A has adopted its LGIP and LGIA as Attachment L to its Tariff.
In its Order 2003 Tariff filing, BPA included provisions in its LGIP to reflect BPA's obligation to complete an environmental review under NEPA of a proposed large generator interconnection before deciding whether to offer a final LGIA to the party requesting interconnection.
In 2004, CSF submitted a generator interconnection request to BPA to interconnect its proposed Wind Project to the FCRTS. Consistent with its Tariff, including the LGIP, BPA must respond to this interconnection request and comply with its NEPA responsibilities.
RELATIONSHIP TO BUSINESS PLAN EIS
In response to a need for a sound policy to guide its business direction under changing market conditions, BPA explored six alternative plans of action in its BP EIS. The six alternatives were: Status Quo (No Action), BPA Influence, Market-Driven, Maximize Financial Returns, Minimal BPA, and Short-Term Marketing. The BP EIS examined each ofthese six alternatives as they relate to meeting the regional electric energy need in the dynamic West Coast energy market. The analysis focused on the relationships among BPA, the utility market, and the affected environment and evaluated transmission as well as generation, comparing BPA actions and those of other energy suppliers in the region in meeting that need (BP EIS, Section 1. 7).
In the BP ROD, the BPA Administrator selected the Market-Driven Alternative. Although the Status Quo and the BPA Influence Alternatives were the environmentally preferred alternatives, the differences among alternatives in total environmental impacts were relatively small. Other business aspects, including loads and rates, showed greater variation among the alternatives. BPA's ability to meet its public and financial responsibilities would be weakened under the environmentally preferred alternatives. The Market-Driven Alternative strikes a balance between marketing and environmental concerns, including those for transmission-related actions. It is also designed to help BPA ensure the financial strength necessary to maintain a high level of support for public service benefits, such as energy conservation and fish and wildlife mitigation and recovery activities.
The BP EIS was intended to support a number of decisions (BP EIS, Section 1.4.2), including contract terms BPA will offer for transmission interconnection services. The BP EIS and BP ROD documented a strategy for making these subsequent decisions (BP EIS, Figure 1.4-1 and BP ROD, Figure 3, page 15).
BPA's decision to offer terms for interconnecting the Wind Project is one ofthese subsequent decisions and the subject of this ROD. BPA reviewed the BP EIS to ensure that offering contract terms for interconnecting the Wind Project was adequately covered within its scope and that it was appropriate to issue a record of decision tiered to the BP ROD. This ROD for the Wind Project, which summarizes and incorporates information from the BP EIS, demonstrates this decision is within the scope of the BP EIS and BP ROD.
Bonneville Power Administration 2 DELGADO EXHIBIT 2 Page 3 of 29
Record ofDecision for the Electrical Interconnection ofthe Shepherds Flat Wind Energy Project
This ROD describes the specific project and environmental information applicable to this decision to offer contract terms for transmission interconnection ofthe Wind Project with reference to appropriate sections of the BP EIS and BP ROD. This ROD references information that was incorporated by reference into the BP EIS from BPA's Resource Programs (RP) EIS (DOE/EIS-0162, February 1993). The RP EIS contains an analysis of environmental effects and mitigation for wind projects and associated transmission.
This ROD also summarizes and references Wind Project information from the following sources:
• Application for a Site Certificate for the Shepherds Flat Wind Farm, Prepared for the Oregon Energy Facility Siting Council. Amended February 2007. Caithness Shepherds Flat, LLC. • Draft Proposed Order Before the Energy Facility Siting Council (EFSC) ofthe State of Oregon in the Matter ofthe Application for a Site Certificate for the Shepherds Flat Wind Farm. Oregon Department of Energy. April 7, 2008. • Proposed Order Before the Energy Facility Siting Council (EFSC) of the State of Oregon in the Matter of the Application for a Site Certificate for the Shepherds Flat Wind Farm. Oregon Department of Energy. June 11, 2008.
PROJECT DESCRIPTION
BPA Interconnection Facilities
To provide interconnection services for the Wind Project, BPA will expand BPA's existing Slatt Substation by approximately 4 acres on the eastern side of the substation. The expansion will consist of a 230-kV yard located immediately adjacent to the existing substation. The area will be cleared and graded. A layer of gravel will be placed on the area. A transformer and other electrical equipment will be placed in the yard. Some of the equipment will be on concrete pads. A set of transmission line terminal structures will be built within the yard to bring conductors from the Wind Project transmission line (constructed by Shepherds Flat) into the 230-kV yard. The interconnection also will require new electrical equipment in the existing Slatt Substation area. An existing access road will be used for construction. The new yard will be fenced to provide security and safety. Shepherds Flat Wind Farm Project
CSF is proposing to construct and operate a wind power facility that will generate up to 909 MW.2 The Wind Project will be constructed in north-central Oregon in Gilliam and
2 Alth~ugh CSF has applied for certification of a 909-MW facility from Oregon EFSC, CSF has requested interconnection of only 846 MW from BPA under Open Access Same-time Information System (OASIS) Generation Interconnection (GI) request numbers 118 (750 MW) and 291 (96 MW). IfCSF should seek interconnection of additional megawatts, it would be through a new request imder the Open Access Transmission Tariff. BPA would review any such request under NEPA and prepare any necessary NEP A documentation before making a decision regarding the request.
Bonneville Power Administration 3 DELGADO EXHIBIT 2 Page 4 of 29
Record ofDecision for the Electrical Interconnection ofthe Shepherds Flat Wind Energy Project
Morrow counties south ofthe Columbia River and Interstate 84 (Figure 1). The proposed project area is divided into northern and southern sections. Each section has different topography, land use and habitats. The northern area is about 15,580 acres of private property used for grazing. The southern area is about 16,520 acres of private property mostly cultivated and planted in dryland wheat. About 1,718 acres are enrolled in the Conservation Reserve Program.
The facility will contain up to 303 wind turbine generators, with a nameplate generating capacity of from 454.5 to 909 MW, depending on the type of turbine selected. Four turbine types are being considered. The wind turbines will range from 397 to 492 feet tall, depending on the type chosen. EFSC's Proposed Order indicates that CSF will be allowed to modifY its project layout as the project is implemented due to micrositing for environmental concerns and other factors, so long as CSF conforms to the binding conditions imposed through the EFSC Order.
In addition to the wind turbines, facility components include the following:
• Six meteorological towers
• An interconnected electrical system
• Two project substations
• A communications system
• Fifty-seven miles of new project access roads
• Two field workshops.
Turbine Foundations Turbine foundations will be excavated to a depth of approximately 32 feet (as conditions and turbine type warrant). Excavation for the foundation will be required at each turbine site, and blasting may be required in some locations. The turbine foundation (or "pad") will total approximately 1,187 square feet, with an additional495 square feet of access road parking area. A portion of the excavated material may be used as fill for road and site grading, and the remaining material will either be stockpiled at the turbine site for backfill while the concrete foundations are poured and cured or hauled off-site for disposal. The stockpiled material will be covered, and the surrounding area will be protected with fences, hay bales, and other barriers to contain sediment flow. Once the foundation has cured, the excavated material will be used as backfill around the foundation; leaving the exposed foundation at the surface only slightly larger than the diameter ofthe tower base. A 10-foot "skirt" surrounding each turbine will be formed by clearing any debris and vegetation, compacting and sterilizing the soil, and applying a layer of washed crushed rock to reduce step and touch hazard. Some turbine models will require a small step-up transformer at the base of the tower on a separate foundation. Towers The tower of the wind turbine supports the nacelle and the rotor. The total height of each tower, to the hub of the rotor blades, is from 262 to 344 feet. Towers are made of heavy rolled steel and are fabricated off-site. The towers are conical with their diameter increasing towards the bottom
Bonneville Power Administration, 4 DELGADO EXHIBIT 2 Page 5 of 29
Record ofDecision for the Electrical Interconnection ofthe Shepherds Flut Wind Energy Project for strength. Each of three to four tower sections includes flanges on both ends, which are bolted together on-site. The towers feature a locked entry door just above ground level, and house internal control and communicatioq electronics. An internal maintenance access ladder with safety platforms provides entry to the nacelle. The towers are smooth, with no avian perch opportunities, are white in color, and have a non-reflective finish.
Nacelles and Generators The nacelle, located at the top of the tower, houses the key operating components ofthe wind turbine, including the gearbox and the electrical generator that transforms motion into electricity. Each turbine is equipped with a yaw system, which uses electrical motors to tum the nacelles and rotors into the wind. The yaw mechanism is operated by an electrical controller, which receives the wind direction from an anemometer mounted atop the nacelle. The anemometer constantly' checks the wind speed and direction, and sends signals to a pitch actuator to adjust the angle of the blades to capture the energy from the wind in the most efficient manner. ·Some turbine types may also have the step-up transformer in the nacelle. Service personnel enter the nacelles from the tower.
Rotors Each wind turbine has three rotor blades, each constructed of one piece of fiberglass or fiberglass composite. Blades are from 135 to 157 feet long. Ground clearance of the blades, when the tips are closest to the ground, is from 82 to 196 feet. Blades are finished with a smooth white outer surface. At the peak of energy production, the blades will turn at about 17 - 22 rotations per minute (rpm). Blades and nacelles are fabricated off-site and shipped to the project location. Blades will be attached to the nacelle on the ground and raised, with the nacelle, into position with a crane. Should adjustments be required, blades can be temporarily removed from the turbine and rotated or replaced.
Meteorological Towers There will be six permanent, un-guyed, 236 to 263 foot meteorological towers (weather stations) located within the facility site. Anemometers located at different heights on the towers will relay information back to control centers via the communication system. Meteorological towers have a concrete foundation: a 30-foot by 30-foot by 2-foot concrete pad is poured at a depth of approximately 5.5 feet; three 30 inch diameter concrete pedestals are affixed to the pad and rise to approximately 6 inches above ground level. The meteorological tower is then affixed to the three poirit pedestal.
Electrical System Wind turbines generate low voltage electricity (from 575 to 4,160 volts depending on the technology selected). Low-voltage underground conductors carry the power from the base of the wind turbine tower to its associated step-up transformer. The step-up transformer raises the voltage to 34.5 kV. A medium-voltage (34.5-kV) collector system connects the step-up transformers and then carries the electricity to one of two facility substations where transformers will raise the voltage once more (to 230 kV) for transmission to the interconnect point. Some types of wind turbines have the step-up transformer in the nacelle. Other types have the step-up transformer mounted on a concrete pad measuring 8 feet by 8 feet by 8 inches thick installed
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Record ofDecision for the Electrical Interconnection of the Shepherds Flat Wind Energy Project
7 feet from the base of the turbine. The top of the finished pad will be at ground level, and a washed crushed rock skirt three feet wide will be installed around the pad.
Collector System Approximately 15 8 miles of collector system runs will be required to connect the step-up transformers to the facility substations. Each collector system run is made up of 3 individual conductors plus a grounding or bonding cable. Approximately 65 miles of collector system runs will be installed underground in a trench of a depth ofthree to four feet. The trench will generally run along the edge of project roads. About 38 miles of collector system runs will be installed overhead. Approximately 10 miles of these overhead runs will be "understrung" on the 230-kV high-voltage lines discussed below. The remaining 28 miles of collector cable overhead runs will be installed on power poles.
Project Substations Two project substations, one each in the north and south sections of the Wind Project, will receive the collector cables. The substations support transformers that will raise the 34.5-kV electricity to 230-kV. The finished size of each project substation will be 500 feet by 200 feet (2.3 acres), and each will be fenced and locked. The area within the substations will be cleared of all vegetation, and the soil will be compacted, sterilized, and covered with washed crushed rock to reduce step and touch hazards.
High-Voltage 230-kV Transmission The 230-kV electricity at the south substation will be transmitted to the north substation via 13 miles of high-voltage H-type power poles. The 230-kV electricity at the north substation will be transmitted to the interconnection point at BPA's expanded Slatt Substation via 4 miles of high-voltage H-type power poles. All transmission corridors are located within lands zoned for exclusive fann use.
Communication System Each wind turbine contains computerized monitors connected to one of two central host computers- one located in each of the field workshops. The supervisory control and data . acquisition (SCAD A) programs operating on the central computer systems monitor energy production, internal and external temperatures, wind speed and direction, and equipment condition for each wind turbine. Automatic wind turbine shutdown in the event of a mechanical fault is also controlled by the SCADA system. The SCADA system will be connected to the wind turbines and meteorological towers with fiber optic communications lines. Approximately 120 miles of these communications lines will run either underground oroverhead, parallel to the low- and medium-voltage power collection conductors. Where underground, communications lines are placed in the same trench as collection conductors; where overhead, communications lines run on the same power poles as the transmission system; communications lines are run to the meteorological towers in separate trenches. These trenches will be similar in size and configuration to the trenches used for the collector system.
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Record ofDecision for the Electrical Interconnection of the Shepherds Flat Wind Energy Project
Project Roads Approximately 57 miles of new road will be. required to serve each turbine string, connect the turbine strings, and connect to existing roads. Thirty miles of existing ranch and farm roads will also be incorporated into the road network. Existing 10-foot wide roads will be expanded to 18 feet; new roads will be finished at 18 feet wide. During construction, 10-foot wide temporary roads will parallel project roads. Collector conductors and communications cables will be trenched in these temporary roads and the surface will be compacted to provide for crane movement. Permanent roads will have a compacted base of native soil, and gravel 4 to 6 inches deep.
Field Workshops· Two field workshops are proposed on-site--one each in the north and south. The northern building is planned to be 125 feet by 50 feet, and the southern building is planned to be 84 feet by 50 feet. Both buildings will be metal clad, insulated structures with a 75-foot skirt of crushed stone. Both workshops will havean adjacent fenced lay-down area of200 feet by 75 feet, and a 20,000 gallon water tank for fire fighting and back-up water. CSF proposes wells and septic tanks for both sites. The workshop footprint will be used for lay-down and secure storage during facility construction. ·
Construction Employment and Schedule During construction, about 250 workers will be employed. CSF will construct the Wind Project over the next three years. CSF expects that Wind Project construction will be completed and the Wind Project will be fully operational in 2011.
Termination of Plant The wind facility is expected to have a useful life of at least 25 to 30 years, and its lifespan could be further extended through facility replacement. Upon eventual termination the wind facility will be decommissioned and the site restored to a non-hazardous condition suitable for agricultural use ..
PUBLIC PROCESS AND CONSIDERATION OF COMMENTS
Consistent with BPA's strategy for tiering appropriate subsequent decisions to the.BP ROD, a public process was conducted for the Wind Project and BPA's proposed interconnection of the Wind Project into BPA's transmission system. Oregon EFSC reviews of the Wind Project also provided opportunities for public comment. These opportunities included the following:
In November 2007, EFSC declared the site certificate application for the Shepherds Flat Wind Farm to be complete. EFSC issued public notice and notice to reviewing agencies and requested comment on the completed application by January 10, 2008. EFSC received comments from 3 seven agencies and 10 individuals • Comments were made concerning a number of issues,
3 Oregon EFSC. Shepherds Flat Wind Farm Draft Proposed Order, Attachment D.
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Record ofDecision for the Electrical Interconnection ofthe Shepherds Flat Wind Energy Project including state and local government permitting requirements, the need for dust and noxious weed control, potential visual, cultural resources, noise, shadow flicker, and water quality impacts, and potential impacts to plants and wildlife (particularly avian) species. EFSC issued its Draft Proposed Order for the Shepherds Flat Wind Farm on April 7, 2008 for public review~ EFSC held a public hearing on May 8, 2008, in Arlington, Oregon. EFSC 4 received comments from four agencies and five individuals • Comments were made concerning issues such as potential soil, visual, wildlife, and wildlife habitat impacts, the need for noxious weed control, and potential impacts to residents and military training routes in the area. BPA also provided opportunity for public comment. On October 5, 2006, BPA sent written notice to adjacent property owners and interested parties describing the proposed interconnection of the Wind Project into the FCRTS at Slatt Substation. The notice requested comments on the proposal by November 10, 2006. BPA posted information about the interconnection request at http://www.efw.bpa.gov/environmental services/Document Librarv/ShepherdsFlatWindFarm/ and in BPA's monthly information periodical, the "BPA Journal." Five comment letters were received during the open comment period about the following issues: • Impacts to the Washington ground squirrel at the substation site • Need for noxious weeds surveys • Visual impacts to local residents • Impacts to the Oregon Trail • Impacts to the natural environment and bunchgrass sage • Impacts to birds and bird flight patterns • Impacts to curlew nesting on Rhea Lane/Road by Arlington; long-billed curlew birds' safety • Impacts of large-scale wind energy development on wildlife and wildlife habitat in the Columbia Plateau region including cumulative impacts to birds and bats • A suggestion that BPA fund research to address cumulative effects of wind energy development on the region. On October 25, 2006, BPA held a public meeting in Arlington, Oregon to receive comments and address questions. No comments were made at the meeting.
ENVIRONMENTAL ANALYSIS
Consistent with the BP ROD, the BP EIS was reviewed to determine whether offering terms to interconnect the Wind Project is adequately covered within its scope. The BP EIS alternatives analyzed a range of marketing actions and response strategies to maintain a market-driven approach. The BP EIS showed that environmental impacts are determined by the responses to BPA's marketing actions, rather than by the actions themselves. These market responses include
4 Oregon EFSC. Shepherds Flat Wind Fann Proposed Order, Attachment E.
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Record ofDecision for the Electrical Interconnection ofthe Shepherds Flat Wind Energy Project resource development, resource operation, transmission development and operation, and consumer behavior.
BPA's BP EIS described generating resource types, their generic environmental effects on a per average-MW (per-aMW) basis, and potential mitigation. The discussion of generic environmental impacts of renewable energy resource development, including wind, is provided in Section 4.3.1 ofthe BP EIS. The RP EIS also described the environmental effects and potential mitigation associated with the construction or upgrade of transmission facilities to integrate the resources with the existing transmission system (Section 3.5). The per-aMW impacts for wind projects (RP EIS, Table 3-19) were incorporated and updated in the BP EIS (Table 4.3-1 ). The BP EIS contains an analysis of generic environmental impacts, including resource development and operation (Section 4.3.1) and transmission development and operation (Section 4.3.2). The Market-Driven Alternative anticipated unbundling of products and services, constructing transmission facilities for requests for non-federal power transmission, and providing transmission access to wholesale power producers (Section 2.2.3). The BP EIS also noted that, under the ·Market-Driven Alternative, new transmission would depend more on generator and other customer requests than on new resource development by BPA (Section 4.2.3.2). Finally, the BP EIS identified the associated need to enhance transmission facilities (Section 4.2.4.1) as one consequence of all resource development. One example would be customer requests for new transmission line and substation facilities for interconnection of generation resources.
In light of the analyses contained in the BP EIS and RP EIS, interconnection of the Wind Project falls within the scope of the BP EIS. Site-specific impacts that would result from the Wind Project are of the type and magnitude reported in the BP EIS and the RP EIS. The following discussion describes the environmental impacts that would result from the substation expansion and the Wind Project, and provides additional information on potential cumulative impacts.
BPA Interconnection Facilities Impacts
Land Use and Recreation The Slatt Substation expansion site is entirely within an area owned by BPA. The site is relatively level to gently rolling, and sparsely vegetated with grass artd rabbitbrush. The site appears to have been heavily grazed in the recent past. There is no recreational use. This type of land is abundant in the region. Current land use will be changed on the 4 acres for the expanded substation yard from open space to transmission facility, and the expanded area, like the existing substation, will be fenced.
Geology and Soils Gilliam County is mainly within the Columbia Plateau physiographic province. Most of the county is a plain that was covered by molten basalt and then uplifted. The basalt in the floor of the plain is overlain by wind-deposited silt. The surface layer of soil in the substation expansion area is dark brown or very dark grayish brown silt loam. The subsoil is dark brown or brown gravelly silt loam. The upper part of the substratum is dark brown or brown very gravelly silt loam, and the lower part of the substratum to a depth of 60 inches or more is brown, calcareous
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Record of Decision for the Electrical Interconnection ofthe Shepherds Flat Wind Energy Project extremely gravelly silt loam. The soils are used mainly for range. They are also used as wildlife habitat.
The expansion area will be graded and leveled, and crushed rock fill materials will be added to form the substation pad. No water is present on or near the site, but BPA will require site specific erosion and sediment controls (Best Management Practices [BMP]) be used for soil stabilization, and to prevent hazardous material and petroleum product releases. Spill notification procedures will be in place. During construction, any spills or leaks of hydraulic fluid or oil from construction equipment will be cleaned up to prevent spills from reaching the soil or groundwater and causing contamination. To reduce disturbance to soils and vegetation, vehicle use will be restricted to access roads and immediate work areas. Access road drainage structures shall be kept functional and the road surface will be maintained to minimize erosion, run-off, and sedimentation.
Vegetation The substation expansion site is in an arid to semi-arid region with low precipitation, hot, dry summers and cold winters. The area has been grazed by sheep in the recent past. The area is sparsely vegetated with native and non-native grasses and rabbitbrush. No trees or large shrubs are present.
Construction of the substation expansion will permanently remove about 4 acres of vegetation. No vegetation will be allowed to grow on the substation's permanent rock surface. BPA will manage any vegetation on the substation site in accordance with BPNs Transmission System Vegetation Management Program Environmental Impact Statement (DOE/EIS-0285, 2000).
Wetlands and Water Resources The substation expansion site's windswept ridge top location is at a high elevation and has no water present. No wetlands or waterways are located in or near the project area.
Fish and Wildlife No aquatic or riparian habitats occur at the site and no fish are present. Some wildlife uses the area. During a field survey, a number of small animal burrows were found, but no terrestrial wildlife was observed. Several raptors were observed flying over the project area. Small numbers of upland animals that may now occupy or pass through the site, such as mice, rabbits, ground squirrels, fox, coyote, mule and blacktailed deer, will be displaced temporarily during construction. Nearby populations will also be temporarily disturbed during construction. Any animals or birds that range through the area during construction may also be disturbed and will likely avoid the area. Wildlife that may have occupied the area will be displaced.
Threatened and Endangered Species BPA completed a site assessment to determine the potential impacts to listed species from the expansion project. No fish species will be impacted because the project will not involve work in or around water. BPA obtained an updated species list from the U.S. Fish and Wildlife Service prior to a site visit. No federal, endangered, threatened or proposed species are known to occupy
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Record ofDecision for the Electrical Interconnection ofthe Shepherds Flat Wind Energy Project the habitat at the expansion site. The only potential habitat listed was for the Washington ground squirrel (Spermophilus washingtonil), a candidate for listing under the federal Endangered Species Act. A survey ofthe project site5 found that no Washington ground squirrels were present on or near the site and that follow-up surveys were unnecessary. Based on this information, BPA has made a determination of no effect to federally-listed species.
Historic/Archeological Resources Under Section 106 of the National Historic Preservation Act, BPA consulted with the Oregon State Historic Preservation Office (SHPO), and the Yakama Nation, the Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated Tribes of the Umatilla Reservation, the Bums Paiute Tribe, the Nez Perce Tribe, and the Confederated Tribes of the Colville Reservation on potential effects to cultural resources and historic properties.
A pedestrian survey of a portion of the site was conducted in January 2006. No cultural resources were identified during the survey. Given th~ degree of disturbance caused by the initial substation development, it is unlikely that any intact cultural resources are located within the Area of Potential Effect (APE). On June 15,2006, the Oregon SHPO concurred with the delineated APE. No concerns or comments were received from consulted tribes. In May 2008, BPA submitted a letter to the aforementioned tribes and SHPO describing how the project would have no effect upon cultural resources in a small substation expansion area not originally considered during the initial consultation. BPA received concurrence from the SHPO on May 27, 2008. No comments were received from the tribes.
If any cultural resources are uncovered during construction, work will immediately cease and BPA and state archeologists will be notified to ensure proper procedures are implemented to protect the site until it is properly assessed.
Visual Resources The substation expansion will be constructed next to the existing Slatt Substation. Traffic numbers on local roads are low. No residences are within sight distance of the site. The substation expansion will. not greatly alter existing visual resources in the area because it will be an extension of the existing substation and will sit under existing 500-kV lines.
Noise Intermittent noise will be generated at the site during construction. Construction will be limited to daytime hours. This noise will be temporary and will cease once construction is complete. The substation expansion will generate noise (akin to a low frequency electrical hum) from the operation of the transformer, but this continuing noise level will not be any greater than the noise already generated by the existing substation. Brief, loud bursts of noise, similar to a gunshot, sometimes occur when circuit breakers operate. These occurrences are infrequent. The
5 Site surveyed with Russ Morgan of the Oregon Department ofFish and Wildlife. March 16, 2006.
Bonneville Power Administration 11 Record ofDecision for the Electrical Interconnection of the Shepherds Flat Wind Energy Project substation will comply with federal and Oregon state noise standards. No residences or other sensitive noise receptors are located near the substation site.
Public Health and Safety During construction, BP A will use standard construction safety procedures to reduce the risk of fire. BPA requires that the construction contractor develop an emergency response plan that includes responding to a potential accidental fire during construction. BPA will also use standard industry traffic controls to inform motorists and manage traffic during construction activities. All equipment fueling operations will use pumps and funnels and absorbent pads. A supply of absorbent materials will be maintained on-site in the event of a spill. Response measures and procedures will be put in place in case of an accidental release of petroleum products and/or hazardous substances. BPA's Pollution Prevention & Abatement (PPA) Program will create an environmental requirements document that will guide construction personnel. A member of the PPA staff is assigned to the project, and will be notified immediately in the event of any hazardous material spill. The substation will be surrounded by a fence to provide security and prevent the public from entering a dangerous area.
Socioeconomics and Public Services No increase in public services is anticipated from the construction and operation of the substation expansion because of its small size and lack of need for services. During construction, the presence of about 15 workers will cause a small, short-term economic benefit to the local community as the workers patronize local businesses.
Air Quality Temporary amounts of dust will be created by earth moving activities during construction. BPA requires that the construction contractor develop and implement a suitable dust abatement plan to control and minimize dust. BMPs will be used to control dust, including using water for dust control, proper storage of disturbed soils, minimizing the amount of disturbed soil at any given time, and restoration seeding of disturbed areas. No water will be withdrawn from any stream, ditch or water body in the project area unless approved. Construction and maintenance vehicles and equipment will be in good running condition, minimizing emissions.
Wind Project Impacts
The following summary of environmental impacts is based on information in the Application for a Site Certificate for.th~ Shepherds Flats Wind Farm and EFSC's Proposed Order for the project.
Land Use and Recreation The proposed Wind Project is in north-central Oregon, immediately south of the Columbia River on private land in Gilliam and Morrow counties. The project area has a northern and a southern section. The northern area is grazed; none is tilled. Most of the southern area is cultivated and planted in dryland wheat. All existing land uses will continue to occur in and around the turbines and other facilities during construction and operations.
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About 135.9 acres in Gilliam County and about 43.5 acres in Morrow County will be removed from production for the wind turbines and associated facilities. There are no designated recreational facilities or activities on the project site. The land is posted to prevent trespass and hunting. There will be no impacts to recreation from the project.
Transportation Construction of project roads, facilities and collection and communication lines will occur at about the same time, using individual vehicles for multiple tasks. During construction, construction, delivery and personal vehicles will make about 25 to 50 round trips daily. Most heavy equipment will be delivered via Interstate 84, and most vehicles will exit I-84 at Arlington. About 30 miles of existing public and private roads will be used for the project. About 57 miles of new private roads will be constructed.
Traffic in Arlington will be disrupted, particularly during the delivery of towers and rotors. During facility operation, two to four daily round trips to and from the project site are expected. On an as-needed basis, maintenance vehicles will travel to and from the turbines on the project site; most of this vehicle traffic will be on private roads.
Geology and Soils The facility site contains two areas with very different characteristics and use, primarily a consequence of soil depth. The northern area of the site is situated south of the Columbia River, and some sections within the site boundary contain portions ofthe bluffs along the river. The upland area is characterized by shallow soils used primarily for sheep grazing. Areas of bare sand, exposed rock, and soil left bare due to wildfires are also frequently encountered. Within or near the site boundary in the northern area also lie portions of Willow Creek Valley and Eightmile Canyon.
Land in the southern area of the proposed facility has deeper soils and is largely devoted to the cultivation of dry land wheat. Fourmile Canyon passes through the southern area, and Willow Creek Valley lies to the east. Fourmile Canyon (an offshoot ofEightmile Canyon) also has an ephemeral stream.
During construction, the temporary disturbance width of project access roads may be up to 100 feet. Standard construction practices include water application as necessary to reduce wind blown soil loss. The disturbance area outside the finished width is not graveled, but rather formed from a compacted base of native soil.· When the construction phase is complete, these areas will be plowed and planted by the landowner as appropriate. Project access roads interconnect with each other and are available for use by both project staff and the landowner, limiting soil damage caused by cross-field driving. ·
The proposed project will have no impacts that will result in loss of soil, excessive erosion, or alteration oflocal geology.
Vegetation The project area contains grazed and ungrazed shrub-steppe and native plant communities. There are also isolated juniper trees, riparian areas, and crop and rangeland. Cheatgrass,
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Record ofDecision for the Electrical Interconnection ofthe Shepherds Flat Wind Energy Project bluegrass species, fescue species, crested wheatgrass, and intermediate wheatgrass are common grass species. Other dominant plants include yarrow, lupine and arrowleafbalsamroot. No federal- or state-listed plant species were found during field surveys of the project area.
Construction activities will temporarily impact up to 180 acres and permanently impact up to 184 acres. After construction all disturbed areas, except the areas needed for permanent facilities, will be restored with native grasses and shrubs or will be managed as cropland or rangeland.
A 435-acre parcel ofland just outside the project areas has been identified that will have approximately 166 acres of habitat restored to mitigate for the Wind Project's impacts to plant and wildlife habitats. Restoration activities on those 166 acres of habitat mitigation area will include the elimination of livestock grazing, weed control, fire control, erosion control, and habitat protection.
Wetlands and Water Resources Fourmile Canyon contains an intermittent creek. Willow Creek, a perennial stream that sits just outside the project boundary to the east, will not be affected by construction of the Wind Project or the interconnection facilities. Some small springs have been developed into stock-watering ponds or altered to flow into stock-water troughs. A number of ephemeral drainages are located within the project area. Only ephemeral drainages will be affected by the proposed project, as some of the new and existing roads will cross them. The project is not within a 100-year floodplain. Wetland surveys were conducted for the project and no wetlands were identified that will be impacted by the project. Groundwater is found in porous zones in underlying basalt. Water from existing wells will be used for dust suppression during construction.
Construction could locally increase storm runoff and expose some soils to erosion, but since most of the project is located in an upland area far away from wetlands or streams, wetlands and water resources are not likely to be affected. The Wind Project will follow a Stormwater Pollution Prevention Plan to reduce any potential impacts to wetlands and water resources.
Fish and Wildlife Fish
There are no perennial streams in the areas planned for wind turbines. Willow Creek is to the east of the wind turbine strings. According to anecdotal evidence, Willow Creek supported Summer steelhead, and is designated as Essential Fish Habitat (EFH) for Chinook salmon. However, steelhead are not currently present due to downstream passage obstructions and low flow problems. Resident redband trout are known to occur in the more suitable reaches and headwater tributaries of Willow Creek. Riparian vegetation in the Willow Creek drainage is estimated at less than 25 percent of historic levels. Willow shrubs and cottonwood trees are limited.
No work is planned within Willow Creek. Runoff from roads and wind farm facilities will be controlled with BMPs and are not expected to contribute to sediment or pollutant loading of
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Willow Creek. Any fish present in Willow Creek are not expected to be affected by the proposed project.
Terrestrial Wildlife
Terrestrial wildlife species that may be found in the area include mule deer, antelope, white- and black-tailedjackrabbits, badgers, coyotes, porcupines, marmots, pocket gophers, ground squirrels, rabbits, voles, mice and other small animals.
Impacts to wildlife.will be mostly local and temporary due to construction disturbance. Construction activities will tend to displace those wildlife species in and around the construction sites, but will not result in permanent displacement over time in those areas where temporary disturbance will take place. Temporary disturbance to wildlife habitat will total a maximum of 180 acres.
The Oregon Department ofFish and Wildlife's Willow Creek Wildlife Area and the BLM's Hom Butte Tract (designated as an Area of Critical Environmental Concern) are within 2 miles of the proposed facility site. However, no construction is proposed in or near these areas, so no wildlife or, habitat in these areas will be affected.
Permanent impacts to wildlife habitat will total approximately 184 acres. The majority of the disturbed area (both temporary and permanent) includes grasslands and agricultural areas, with minor amounts of shrub-steppe. Thus, the majority ofimpacts will be to grassland species such as squirrels, mice and other small mammals.
Impacts to wildlife and wildlife habitat will be mitigated by the restoration of an adjacent 435-acre parcel ofland containing shrub-steppe and other habitat that is currently degraded.
Avian Species
Avian use studies identified over 60 species of birds within the wind project boundaries during site surveys. Common birds found in the project area include homed lark, Western meadowlark, blackbirds, ravens, crows, red- tailed hawk, Swainson 's hawk and other birds.
Using a regional (Northwest) fatality estimate range of0.9 to 2.9 (average of 1.9) avian deaths/MW/year, the range of potential fatalities for the 909 MW Wind Project could be between 818 and 2,636 birds per year, likely averaging approximately 1,727 birds per year. Using deaths/MW may overestimate expected fatality numbers for the Wind Project depending on which turbines are used. Most of the mortality data collected to date is from wind farms that use 1.5 MW turbines. If the Wind Project uses 3.0 MW turbines, each turbine, although producing double the power output of the 1.5 MW units, is not likely to cause double the number of bird fatalities because the rotor-swept area is not twice as big.
Raptors
The area surveyed within 2 miles of the project boundaries contained six active red-tailed hawks nests, one Swainson's hawk nest, one golden eagle nest, and two great homed owl nests.
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Record ofDecision for the Electrical Interconnection of the Shepherds Flat Wind Energy Project
Raptor mortality at the Wind Project is expected to be low to moderate given relative moderate raptor use of the site, and the documented low raptor mortality observed at other new wind projects using similar turbines in the U.S., outside of California. The regional raptor mortality ranges from ofO to 0.14 fatalities/MW/year (average of0.05). Based on monitoring results of other regional projects and raptor use documented at the project site in 2005, estimates of raptor mortality for the Wind Project may range between 0 and 127 raptors per year, likely averaging about 45. Most fatalities of diurnal raptors will likely consist of red-tailed hawks and American kestrels.
Mitigation measures to reduce impacts to raptors will be taken if fatality monitoring (which is reported to ODFW) exceeds a threshold of concern (0.09 fataiities/MW, 0.06 for raptor species of special concern), and will be determined based on the species affected, the location where they are affected, and other variables agreed to by ODFW and the wind farm owner.
Passerines
Based on results of other regional projects, and estimates of passerine fatalities observed at other newer generation wind power projects in the western United States, an approximate range of 563 to 1,818 songbird fatalities per year (average of 1,190) or 0.62 to 2.0 fatalities/MW/year is predicted for the Wind Project. The largest number of fatalities will likely be homed larks, a common grassland songbird frequently detected during the surveys. Western meadowlarks may also collide with turbines. Impacts to individual western meadowlarks will likely be related to vehicular activity on-site. These ground-nesting species spend a considerable amount of time on the ground and could be struck by vehicles on occasion~ Various swallow species may occasionally interact with turbines and night-migrating golden-crowned kinglets may collide with turbines. No other species (day or night-time migrant or resident nester) is anticipated to make up a large proportion of the fatalities, based on the patterns of results of other regional studies for projects that are operating in a native habitat/agricultural environment.
Wateifowl
The project area is sometimes used by Canada geese, especially during the winter period as they forage in grain fields. Some waterfowl mortality may occur from the project, but based on available 4ata from other projects, the numbers are expected to be very low.
The only shorebird observed in the turbine development area of the Wind Project was long-billed curlew, a State Sensitive species. No long-billed curlew collision fatalities have been found at any existing wind projects, though some wind projects have been constructed at sites where long-billed curlews were recorded during baseline avian-use studies. Use by curlews at the Wind Project site is higher in the northern portion of the site, so some collisions could occur in that area. While long-billed curlews may be at risk for collision with turbines whenever they occur in the project area, they may be at increased risk during pair formation, when they are performing their aerial displays.
Curlews are also known to be susceptible to human disturbance during the breeding season, which can result in nest abandonment or disruption of important parental behaviors such as brooding chicks. Loss of suitable habitat may reduce social behaviors or reduce nesting
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opportunities. Construction activity will be avoided within 0.5 miles oflong-billed curlew nesting habitat during the nesting season, including areas within the Hom Butte Wildlife Area.·
Operational noise generated by the turbines is not expected to be a significant source of disturbance to nesting long-billed curlews or to other nesting avian species. With mitigation, impacts to long-billed curlews is expected to be low.
Other Birds
Some upland gamebird mortality has been documented at wind projects. It is not clear'ifthese mortalities were caused by turbine towers or blades. Also, there are likely some collisions with project vehicles traveling through the project. Based on habitat present, results from other regional wind projects, and the presence of a few gamebirds (primarily pheasants) during the project baseline surveys, there is potential for mor4llity of some upland gamebirds to occur. The occurrence, how._ever, is expected to be infrequent. The presence of wind turbines may alter the landscape so that wildlife habitat use patterns are altered, thereby displacing wildlife away from project facilities. Recent grassland bird study results suggest there are relatively small-scale impacts of the wind facility on grassland passerines. Grassland species as a whole appear not be have been impacted through loss of habitat in the studied areas, and habitat mitigation is providing suitable habitat over time to compensate for the project footprint habitat impacts. Bats
The primary impact to bats will be collision mortality. Available evidence indicates that this will be confined primarily to J!1igratory species. Bat mortality estimates have been made for existing wind projects in the Pacific Northwest, where they have ranged from 0.63 to 2.46 (average 1.43) batsf.¥W/year (with the same caveat discussed under the avian impacts section regarding the use of3.0 MW turbines). Most bat fatalities were hoary bats and silver-haired bats. Most mortality has occurred from mid-summer through early fall, coinciding with the fall migration period. There is little potential foraging habitat and limited roosting habitat for bats in the vicinity of the Wind Project. No aquatic habitat is present onsite for bats to drink or forage for insects over open water. Only five species of bats are likely to be resident in the area and they are unlikely to be affected by construction of the turbines. The turbine locations are open arid environments that are often windy. Open surface water ponds and pools (bat foraging and drinking sites) will not be impacted during the construction or operation of the project and no deciduous trees or snags (bat roosting habitat) will be impacted. Therefore, construction of the project will not result in the loss or degradation of bat habitat in the project area. Using the regional per MW per year range, bat mortality during operation of the Wind Project is expected to range from 572 to 2,236 (average 1,299) bat fatalities for the 909-MW project. Species composition will likely be similar to that at other wind projects, with silver-haired and hoary bats comprising most of the fatalities. Based on knowledge gained from monitoring at other wind projects in the region, it is expected that two bat species (the hoary bat and the silver-haired bat) have the potential to migrate through the area. Although bat inventories and studies are almost non-existent in the general area, based on all available information, no threatened or endangered bats are likely to occur. No state
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Record ofDecision for the Electrical Interconnection of the Shepherds Flat Wind Energy Project sensitive status bat species have been documented within and near the Wind Project area; only the silver-haired bat (sensitive-undetermined status) is likely to occur due to its potential migratory movements through the general area. Risk of turbine collision for this species is high based on results available for adjacent wind projects.
State and Federal Threatened and Endangered Species The following species with federal or state status are listed for Gilliam and Morrow counties:
Species Federal Status State Status Greater Sage Grouse (Centrocercus urophasianus) Candidate State Sensitive - Vulnerable Bald Eagle (Haliaeetus leucocephalus) none Threatened Washington ground squirrel (Spermophilus washingtoni) Candidate Endangered Canada Lynx (Lynx canadensis) Threatened none Gray Wolf(Canis lupus) Endangered Endangered Grizzly Bear (Ursus arctos horribilis) Threatened none Chinook Salmon (Oncorhynchus tshawytscha) Threatened Threatened Steelhead (Oncorhynchus mykiss) Threatened State Sensitive -Vulnerable Sockeye Salmon (Oncorhynchus nerka) Endangered none
Sage Grouse
The historic distribution of the greater sage grouse includes Gilliam County, however there are no records of current detections in either Morrow or Gilliam counties and there were no observations ofthis species recorded during the on-site wildlife surveys. Suitable habitat for the species includes foothills, plains and mountain slopes where sagebrush.is present Little suitable habitat exists within the site boundary. The Wind Project is unlikely to have an effect on sage grouse, because habitat for the species is lacking in the project area, and no sage grouse have been observed in or near the project area.
Bald Eagle
Bald eagles winter along the Columbia River north of the project area. The eagles concentrate their foraging and roosting in areas along or close to the Columbia River, but they scavenge on carrion and small mammals in the upland areas. Only one observation was recorded during the on-site wildlife surveys.
To mitigate any risk to bald eagles from wire strikes and electrocution, most of the facility collector lines will be placed underground. All aboveground transmission line structures will be designed in accordance with the Avian Power Line Interaction Committee (APLIC) guidelines to reduce the risks of wire strikes and electrocution. Meteorological towers will be non-guyed structures to eliminate the risk of avian collision with guy-wires, and turbine towers will be smooth tubular structures rather than lattice towers to avoid creating perching opportunities. For turbine types having pad-mounted step-up transformers, the transformer cabinets at each turbine will be designed to avoid creation of artificial habitat for raptor prey.
Standardized fatality searches of turbine tower areas and ongoing monitoring of all facility structures will take place after construction. CSF will report any bald eagle fatalities attributable to collision with wind turbines or other facility structures to the Oregon EFSC and Department of
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Fish.and Wildlife. Additional mitigation may be required if the fatality rate for raptor species including bald eagles exceeds a level of concern. Based on the limited use of the facility site by bald eagles and the proposed mitigation measures, the project is unlikely to cause more than isolated bald eagle fatalities.
Washington Ground Squirrel
The Washington ground squirrel (WGS) was abundant in sagebrush and native bunchgrass habitat throughout the Columbia plateau, including Gilliam and Morrow counties, but has declined significantly. The current range of the WGS is unknown, but is generally thought to be greatly reduced from the historic range, largely due to agricultural and grazing activities and other development that have fragmented and disturbed native vegetation. The squirrel occupies burrow systems requiring deep soils with high silt content. In Oregon, these conditions are predominantly found in Warden soils. Suitable deep soil is present in the southern project area. Except in areas too steep to cultivate, the deeper soils in the southern project area are cultivated for dryland wheat, making these areas unavailable for WGS habitat. Soil depth in the northern project area is generally too shallow to provide suitable habitat.
WGS occur within the analysis area. On-site wildlife surveys in 2002-2004 found no signs of WGS activity within the area searched. A biologist observed a WGS colony off-site but near the site boundary. This colony was used as a reference site to help identify WGS burrow characteristics during the rest of the survey. Systematic surveys for WGS were conducted in 2007. The survey included all areas of suitable soil for WGS burrows within the site boundary and a 1,000-foot buffer outside the site boundary (a total area of approximately 26 square miles). The surveyors identified five WGS sites in addition to the reference site. Four ofthe five sites, as well as the reference site, are outside the Wind Project boundary. All but one of the sites (including the reference site) lie well outside the site boundary and outside the 1,000-foot buffer area. These sites were not within the survey area and were observed incidentally. The surveyors found one WGS colony complex in the survey area, consisting of three areas ofburrow entrances. Only one ofthe burrow entrance areas lies within the site boundary, and the larger portion of the complex lies outside the site boundary. The surveyors observed two individuals and fewer than ten burrow entrances within the site boundary.
In March 2008, the proposed transmission line corridor along Fourmile Canyon Road was moved· to land not previously surveyed for WGS. A supplemental survey was conducted within a search ·area that included the proposed corr-idor plus a 1,000-foot buffer outside the site boundary. The supplemental survey followed the same protocol as the 2007 survey described above. No WGS or WGS burrows were observed.
All WGS habitat will be avoided during construction and operation of the proposed Wind Project and no construction will take place within 1,000 feet of squirrel habitat when the squirrels are active (generally between early March and the end of May). The status of the WGS colony within the site boundary will be assessed beginning in the first WGS activity period after construction begins and annually thereafter through the second year after the facility becomes commercially operational. ·
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Soil conditions and physical constraints from current land uses make it unlikely that the existing WGS colony will expand farther into the Wind Project site. With the mitigation measures, the proposed Wind Project will have no effect on WGS.
Canada Lynx, Gray Wolf, and Grizzly Bear
Although the historic distribution of these three species includes Gilliam and Morrow counties, they are now extremely rare or non-existent within Oregon. There are no recent recorded detections of these species in either Morrow or Gilliam counties, and these species were not observed during on-site wildlife surveys. Because these species are not present in or near the project area, the Wind Project will have no effect on these species.
Fish
Three listed fish species in the analysis area are anadromous species that travel the Columbia River north of the facility site. The fish may be present in Morrow and Gilliam counties, but there are no perennial streams within the site boundary that can support these species. FaciLity construction will not consume water from any streams that function as habitat for these species. The project will have no effect on listed salmon and steelhead.
Historic/Archeological Resources Cultural resources were discovered during a survey ofthe project area at one location in the northern section. This site consisted of an extensive lithic scatter with artifacts. These resources will be avoided during construction and operation. If impacts cannot be avoided, treatment plans will be developed to minimize and mitigate the adverse effects to these resources. If a cultural resource is discovered during construction, the construction activity will cease in the vicinity of the site and the state and affected tribes will be notified.
Visual Resources Wind energy facilities have no emissions to affect visibility during facility operation. During· construction, dust suppression measures will reduce the potential for visible dust clouds.
' Wind turbine towers will be visible·from some locations within protected areas. Three ofthe identified protected areas are associated with the John Day River and are more than 17 miles west of the project site. The John Day Federal Wild and Scenic River and the John Day State Scenic Waterway are managed, in part, for outstanding scenic quality. The visual impact analysis shows that the proposed wind turbines will not be visible from viewpoints on the river. The John Day Wildlife Refuge is not managed for scenic views, but is protected because it provides wildlife habitat. The proposed project will not have a significant adverse visual impact on the John Day Federal Wild and Scenic River, the John Day State Scenic Waterway or the John DayWildlife Refuge.
The Willow Creek Wildlife Area and the Hom Butte Wildlife Area are within 2 miles of the proposed facility site. Turbines will be visible from these areas. Turbines might be visible from locations within the Umatilla National Wildlife Refuge, but from a distance of more than 17 miles. These three protected areas are protected because they provide wildlife habitat. They
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Record ofDecision for the Electrical Interconnection ofthe Shepherds Flat Wind Energy Project are not protected or managed for scenic views. Although parts of the project might be visible from the Willow Creek Wildlife Area, the Hom Butte Wildlife Area and the Umatilla National Wildlife Refuge, the visual impact of the impact of the facility will not result in a significant adverse impact to these protected areas.
The current project area includes portions of the Oregon Trail, some parts of which have wagon ruts still visible. The initial project proposed would have impacted the Oregon Trail, but the Wind Project now proposed will avoid disturbing the Trail by having no project facilities, access roads or work areas sited on the identified rutted remnants of the Oregon Trail. No project facilities, access roads or work areas will be sited on undeveloped land where the trail alignment is marked by existing Oregon-California Trail Association markers. CSF will provide pre construction photographic documentation of the presumed Oregon Traii alignments within the site boundary.
Noise Temporary construction noise will occur from building access roads, wind turbines, substations, and transmission lines.
Permanent noise will occur from operation of the wind turbines themselves; the turbine blades passing through the air and the gear box and generator located in the nacelle. Noise from the blade is reduced with an aerodynamic blade and materials that provide a smooth finish on the blades. To mitigate noise from the gear box and generator, these components are totally enclosed and insulated in the nacelle. Noise will be generated on an intermittent basis depending on wind velocity and duration.
Overall, wind turbines are typically quiet, but the noise generated by wind turbines is likely to be the most noticeable at low wind speeds (8 to 12 miles per hour [mph]). Wind turbine noise tends to be masked by other background sources (i.e., the sound generated by the wind) at higher wind speeds.
New noise sources on sites that have not previously been used for commercial or industrial purposes have a limit on the allowable increase over existing ambient noise levels. Generally, sources on new sites may not increase the noise levels by more than 10 dB A (decibels on the A-weighted scale) unless the person who owns the noise sensitive property executes a legally effective easement or real covenant that benefits the property on which the wind energy facility is located. This effectively allows for a noise level of no more than 36 dBA (26 dB A background + 10 dB A increase) at noise sensitive properties. Wind turbines and transformers can cause noise that may exceed the noise limit and would require mitigation.
Because of the recommended conditions required by EFSC, the proposed facility will comply with the applicable state noise control regulations.
Public Health and Safety Fire risk from construction activities include dry vegetation coming in contact with an ignition source, such as catalytic converters on vehicle exhaust systems, smoking by construction
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personnel, use of explosives, electrical arcing, and use of welding equipment. There is a small risk of accidental fire or explosion during operation and maintenance as a result of careless smoking practices, catalytic converters coming in contact with dry plant material, or a turbine mechanical failure. The site could also be impacted by range fires that originate off site, or from lightning. Most of the electrical connection system will be buried, minimizing the potential for fire. However, the overhead transmission line could, in unusual circumstances, cause a fire from a broken electrical cable or sagging of the line into vegetation during periods of very hot weather. The appropriate maintenance of vegetation within the transmission line corridor and line voltage regulation will minimize this potential impact.
Fuel and lubricating oils from construction vehicles and equipment are potential sources of hazardous material that could accidentally leak or spill during construction, operation and maintenance. Potential spills or leaks could occur during refueling or equipment maintenance, but could also occur from equipment failure or an accident. Some turbine components also include lubricating oils and coolants that could be released if a component containing these materials was damaged during construction. Mineral oil used in turbine transformers and at the substations could also be accidentally released by damage caused during transport or installation.
Electromagnetic fields (EMF) are produced when electricity flows through a conducting material or is used by an electrical device or appliance. In particular, magnetic fields are the result of electrons moving through a conductor or electrical device and electric fields are a result of the force (voltage) that drives the electrical current. EMF will be associated with the turbines, turbine transformers, the underground collection system, the substations, and the overhead transmission lines. Although there have been numerous studies on the potential health effects from EMF, the studies remain inconclusive showing no or weak associations with effects on ,, health.6
Socioeconomics and Public Services The project will not increase the need for public services. There will be no significant increase in permanent population as a result of construction and operation of the project. During construction most workers will permanently or temporarily reside in the local area (approximately 250 workers over the course of construction). Operation will not require a large number of people (about 35 permanent full-time employees). The project will not result in a significant increased need for public services, including fire and police protection. The number of people expected to need temporary lodging or permanent housing will be small enough that adequate housing, and other lodging, will be available.
The Wind Project will have a net economic benefit to the landowners participating in the project because wind lease payments to landowners will provide a supplementary source of income that
6 Minnesota Department of Health, [undated]. Electric and Magnetic Fields, Frequently Asked Questions, Web site: lillP.://www.health.state.mn.us/divs/eh/radiationlemfY#risks, accessed December 5, 2005.
National Institute of Health Sciences and the National Institute of Health. June 2002. EMF Electric and Magnetic Fields Associated with the Use of Electric Power. Web site: http:/Aw:w.doh.wa.gov/ehp/rp/xray/emf202.pdf, assessed December 5, 2005.
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Record of Decision for the Electrical Interconnection ofthe Shepherds Flat Wind Energy Project will help farmers retain their farms when farm prices reduce other sources of farm income. A substantial increase in the Morrow and Gilliam counties' tax bases will provide benefits to all county residents. Indirect economic benefits will accrue to businesses in the area from construction workers purchasing goods and services.
Air Quality Air quality in the area is generally good, with windblown dust the only pollutant typically found.
Fugitive dust emissions will result from dust entrained during project site preparation including road building, on-site travel on unpaved surfaces, and soil disrupting operations. Wind erosion of disturbed areas will also contribute to fugitive dust.
Construction activities also temporarily generate small amounts of carbon monoxide (CO). Heavy trucks and construction equipment powered by gasoline and diesel engines will generate CO from exhaust emissions. If construction traffic were to delay or reduce the speed of other vehicles in the area, CO emissions from traffic would increase slightly. CO emissions will be temporary and limited to the immediate area surrounding the construction site.
Wind farms help off-set the production of air pollutants and greenhouse gasses by replacing a small percentage of energy that otherwise would have to be generated, presumably, by traditional, 'dirtier' energy sources such as a gas or coal fired turbines. The proposed construction time varies and the project may be completed in phases. Overall, air quality impacts will be low because impacts will occur in the short term in a localizec;l area, during construction only, with very unlikely health and safety risks.
When the Wind Project is operational, minimal emissions from any source are expected.
Cumulative Impacts
The BP EIS and RP EIS provide an analysis of potential cumulative impacts resulting from development of generation resources and transmission facilities in the region. Many other wind projects have been built and are reasonably certain to be built in the region. According to the cumulative impacts analysis prepared for the project,7 approximately 4,060 MW of wind power is proposed in the Columbia Basin within 60 miles of the project area and is reasonably certain to be built. This figure and analysis area is used in the following sections discussing cumulative impacts. Other projects are in the early planning phases and may or may not be constructed, thus there is no reasonable certainty that they will be constructed.
7 Caithness Shepherds Flat, LLC. Application for a Site Certificate for the Shepherds Flat Wind Farm, Prepared for the Oregon Energy Facility Siting Council. Amended February 2007, and supporting documents.
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Land Use and Recreation Overall, wind projects and associated facilities, including substations, have relatively little direct impact on land use because the footprint of the facilities is small even if they occur across large areas. Additionally, wind projects tend to reinforce the existing agricultural land uses (the primary land uses in most areas proposed for wind energy). Wind projects are compatible with all types of agriculture, which can occur around most wind project facilities. Wind lease payments provide a supplemental source of income for farmers, helping them weather the uncertainties of agricultural yields and prices.
Local land use regulations in Gilliam. and Morrow counties require county land use approval prior to construction of additional facilities. Oregon EFSC requires that projects over a certain size apply for a site certificate. These permitting processes are designed to prevent incompatible uses and the degradation of farmland. The potential for cumulative impacts will be substantially minimized by these regulations.
Wind projects and associated facilities have little direct impact to recreation in agricultural areas. Any private hunting opportunities allowed by landowners could continue after construction and during turbine operation. Some vandalism of facilities may occur. For this project, and other wind projects, mitigation has been required to avoid impacts to established recreation sites.
Geology and Soils and Flood Hazards Construction of energy projects close together could increase the flooding and erosion potential in flood-prone areas as a result of the decrease in soil storage area. Additional wind projects and associated facilities needed in the future could increase the potential for erosion, but standard control and containment measures would limit permanent impact.
Vegetation and Wildlife Terrestrial Wildlife
The current and proposed wind projects near the analysis area will have low impacts to non avian terrestrial species because much of area is under agricultural cultivation and disturbance to these species occurs regularly. Additional fragmentation and reduction will be offset by mitigation (low-:quality habitat restoration, or conservation easements). Likewise, operation of
·. -:.· these facilities is not expected to adversely affect most terrestrial species. Birds
Annual avian mortality estimates at six recently constructed wind farms in the Columbia Plateau Ecoregion ranged from 0.9 to 2.9 birds per MW, averaging 1.9 avian deaths/MW/year. All constructed, planned, and under construction wind projects within 60 miles and including CSF's Wind Project would contribute about 4,060 MW of power. Assuming that mortality rates are representative of the region, new wind power generation could cause between approximately 3,650 and 11,775 and on average 7,715 avian deaths per year in the region.
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Rap tors
At modem wind power projects in the Columbia Plateau Ecoregion, raptor mortality has been low, ranging from 0 to 0.14 raptor fatalities per MW per year. An added 4,060 MW of capacity in the region could result in between 0 and 568, and on average about 200 raptor deaths per year.
Red-tailed hawk and American kestrel account for more than 69 percent of the raptor fatalities recorded at the regional wind projects studied. Assuming this trend holds true for all proposed wind projects in the Columbia Plateau, it would be expected that on average 70 red-tailed hawk and 70 American kestrels would be killed each year. Approximately 18 red tail and kestrel fatalities would occur during the breeding season. An estimate of the breeding population in the Columbia Plateau based on the long-term average data is approximately 6,820 breeding red tailed hawks and 6,288 breeding American kestrels. The impact to the breeding population would represent approximately 0.26 percent and 0.28 percent respectively, which is likely to be below background mortality for these species and is not considered to have an effect on regional populations. The other species ofraptors have been impacted far less and would represent a much smaller number of fatalities.
Passerines
Passerines have been the most abundant avian fatality at wind projects studied (approximately 69 percent of all avian fatalities). Both migrant and resident passerine fatalities have been observed, with migrants generally making up 20-30 percent of the avian fatalities. Assuming that 69 percent of all bird mortality would be passerine fatalities between approximately 2,518 and 8,125 and on average 5,323 passerine deaths per year in the region would occur. Some impacts are expected for nocturnal migrating species; however, impacts are not expected to be great for the Columbia Plateau Ecoregion. Estimates for nocturnal migrant mortality at the regional wind projects have ranged from 0.27 to 0.73 per MW per year or approximately 1,090 to 2,960 nocturnal migrant fatalities for the 4,060 MW of wind power expected to be · constructed. Passerine species most common to the project sites will likely be most at risk, including homed lark and western meadowlark. Homed larks represent approximately 35 percent of the avian fatalities in the Columbia Plateau Ecoregion at wind projects.
Local populations ofhomed larks are difficult to define because ofthe vast amount of suitable habitat for this species in the Columbia Plateau. However, based on existing breeding bird surveys, the breeding homed lark population in the Columbia Plateau is calculated to be approximately 127,500 homed larks. If it is further assumed that the 2,715 homed lark fatalities are spread equally over the year, then roughly one-quarter ofthese (approximately 679) would be during the breeding season. This represents approximately 0.5 percent of the breeding homed larks and is not considered high enough to affect population dynamics. It is likely that other background mortality of breeding homed larks is greater than this estimate. Similar calculations for other passerine species indicate that impacts to these species would be minor and unlikely to have any population effects.
In general for wind projects in the Columbia Plateau, approximately 25 percent of the fatalities have been considered migrants spread over many species. The most common migrant fatality (9 percent) was golden-crowned kinglet. Golden-crowned kinglets are typically associated with
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treed or wooded habitats during the breeding season so it is assumed that many of the impacted individuals were from surrounding, more mountainous ecoregions or populations farther north (e.g., Canada). As with horned lark, estimating the potential population size from which these birds came requires a number of assumptions. However, while it is unknown, it is possible that the individual fatalities came from multiple populations in surrounding or more northern ecoregions, thus diluting the impacts on any one population. Other potential migrant species were found in lower numbers. Cumulatively the impacts to migrants would be spread over a much larger population base and are not considered to have population effects.
Upland Gamebirds
For projects in the Columbia Plateau Ecoregion, upland gamebirds have composed a higher percentage of avian fatalities than in other regions of the U.S., approximately 18 percent of all · avian fatalities. Three introduced species, ring-necked pheasant, chukar, and gray (Hungarian) partridge, are the most commonly found non-passerine fatalities. Estimates for upland gamebird mortality in the Columbia Plateau Ecoregion have varied from 0.27 to 0.47 per MW per year, or between 1,090 and 1,910 upland gamebird fatalities per year. The upland gamebird species most commonly impacted, (ring-necked pheasant, gray partridge, and chukar) are introduced species common in mixed agricultural native grass/steppe habitats. There is generally low concern over impacts to upland game birds. These species are regulated by state agencies as game species. Impacts from wind farms to these species are not expected to have population level effects given the vast amounts of suitable habitat and other impacts to these species (i.e., hunting).
Bats
Results of fatality monitoring for the Columbia Plateau Ecoregion wind projects indiCate mortality ranges of approximately 0.63 to 2.46 bats per MW per year. Based on these results, ' and considering the similarities in the characteristics of the project areas and other regional projects, a conservative estimate of total bat mortality would be betweei12,550 and 9,990 bats per year, assuming 4,060 MW of wind power is constructed.
Only four species of bat fatalities have been documented for six wind projects monitored in the Columbia Plateau Ecoregion (silver-haired bat, hoary bat, little brown bat, and big brown bat) The species at highest risk appear to be foliage dwelling (forest, trees) fall migratory species. The annual period when most bat fatalities occur is in August and September. Hoary and silver haired bats are widespread across North America and breed into the boreal forests regions of Canada and migrate south to winter in the southern U.S., Mexico, and potentially farther south in Central America.
Unlike for birds, there is little information available about populations of bat species. Bat mortality in the Columbia Plateau Ecoregion would involve primarily silver-haired and hoary bats, and no impacts to threatened or endangered bat species are anticipated. Hoary bat and silver-haired bats are widely distributed in North America. In general, mortality levels on the order of 1-2 bats per turbine or per MW are thought to be on individuals and not significant to populations, however, cumulative effects may have greater consequences for long-lived low fecundity species such as bats. Unlike many avian species that may have multiple clutches of multiple young per year, hoary bats and silver-haired bats likely only raise one or two young per
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Record ofDecision for the Electrical Interconnection of the Shepherds Flat Wind Energy Project other construction projects. State and county approvals have required large setbacks from public roads and residences to reduce the potential risks to the public from wind projects.
Socioeconomics and Housing Wind lease payments to farmers provide a supplementary source of income that helps farmers retain their farms when farm prices or weather reduce other sources of farm income.
Additional development would provide tax revenue to local governments.
New wind generation projects would create temporary effects on housing. Because these effects would be temporary and may occur during separate time periods, accumulation of impacts related to project construction would be minor. ·
Public Services and Utilities Cumulative impacts on public services and utilities would be largely dependent on facility siting. Emergency services would have a higher demand with the additional facilities to cover. However, this additional demand could be offset by additional tax revenue.
Air Quality Air quality issues associated with wind energy are limited to construction emissions, which could be minimized by the use of reasonable controls on all projects.
Transportation If two or more wind projects are built at the same time in an area where the construction traffic uses the same road network, the construction-related traffic would have a cumulative effect. These effects would be temporary. To minimize them during construction, the projects involved could investigate coordinating delivery schedules and routes, use of shared resources to minimize trips, and coordinating construction schedules to address any temporary constraints on traffic flow that develop.
MITIGATION
Specific resource mitigation conditions to avoid or minimize environmental harm from the Wind Project were identified through the Oregon Department of Energy and EFSC facilitY siting process and are incorporated here by reference.
PUBLIC AVAILABILITY
This ROD will be available to all interested parties and affected persons and agencies. It is being sent to all stakeholders who requested a copy. Copies of the BP EIS, BP ROD and additional copies of this Shepherds Flat Wind Project ROD are available from BPA's Public Information Center, P.O. Box 3621, Portland, Oregon, 97208-3621. Copies ofthese documents may also be obtained by using BPA's nationwide toll-free document request line: 1-800-622-4520, or by accessing BPA's Web site: W\vw.e:fw.bpa.gov.
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year and only breed once per year. Bats tend to live longer than birds, however, and may have a long breeding lifespan. The impact of the loss of breeding individuals to populations such as these is generally unknown, but may have greater consequences.
Since it is most likely breeding populations from surrounding mountainous/forested ecoregions or from more northern areas (e.g., Canada) that are affected at the Columbia Plateau wind projects during the fall migration, the dynamics of these populations would need to be known to predict population effects. If these populations are large and stable the level of impact is not expected to be significant. However, if population trends are decreasing, the added impact from wind development may continue to cause population declines. This information is generally unknown and future study is needed before the significance of the impacts can be estimated.
Wetlands and Water Resources Wetland, water quality, and water use impacts related to new wind generation projects would be temporary and minor, and subject to further regulatory approvals. Wind projects can be located to avoid these resources.
Historic and Cultural Resources Cumulative effects on cultural resources are associated with construction activities and permanent land use change through development of new wind generation projects. Because the developments are likely to be dispersed throughout many counties, the impacts are not likely to be concentrated, so loss of cultural artifacts from an entire cultural source is unlikely. Wind projects can be located to avoid these resources.
Visual Resources Additional turbine installation would increase the number of areas from which turbines would be visible. Because future wind energy development would likely occur in rural areas of Gilliam and Morrow counties and surrounding counties, visual impacts of wind energy would be · experienced by residents of these rural areas. Turbines would also be visible to people traveling through the counties on public roads near the wind project areas. The significance of the visual changes varies according to the location ofthe wind projects and the perceptions of the viewers (some viewers find that wind energy projects add a positive element to the visual environment, while others disagree). Noise·
Significant noise issues associated with wind generation projects are limited to the construction period of the project. No operational impacts are anticipated other than the sound of the blades when the turbines are operating and intermittent noise associated with substation operations. State and county approvals have required large setbacks for turbines from residences or noise easements, and these measures reduce the impact of operational noise from individual turbines.
Public Health and Safety Any potential risks to the health and safety of workers or the general public associated with the construction, operation, and maintenance of wind projects would be incidental and comparable to
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CONCLUSION
BPA has decided to offer contract terms through a LGIA for interconnection ofthe Shepherds Flat Wind Project into the FCRTS at Slatt Substation in Gilliam County, Oregon. The LGIA provides for interconnection ofthe Wind Project with the FCRTS, the operation of the Wind Project in the BPA Control Area (including control area services such as generation imbalance service), and the maintenance of reliability ofthe FCRTS and interconnected systems. As described above, BPA has considered both the economic and environmental consequences of taking action to integrate power from the Wind Project into the FCRTS. This decision is:
• within the scope of environmental consequences examined in the BP EIS; • in accordance with BPA's Open Access Transmission Tariff and associated LGIP; and • in accordance with BPA's statutory authority to make available to all utilities any capacity in this system determiQed in excess to that required by the United States (16 U.S.C. 838d). BPA will take measures to ensure the continuing safe, reliable operation of the FCRTS. This ROD identifies all practicable means to avoid or minimize environmental harm that might be caused by the integration of the Wind Project into the FCRTS.
BPA contracts providing for integration of power from the Wind Project into the FCRTS at Slatt Substation will include terms requiring that all pending permits be approved before the contract is implemented. BPA contracts will also include appropriate provisions for remediation of oil or other hazardous substances associated with construction and operation of related electrical facilities in a manner consistent with applicable federal, state, and local laws.
Issued in Portland, Oregon.
Is/Stephen J. Wright July 18, 2008
Stephen J. Wright Date Administrator and ChiefExecutive Officer
Bonneville Power Administration 29 DELGADO EXHIBIT 3 Page 1 of 9
CONFIDENTIAL,SUBJECT TO PROTECTIVE ORDER UM 1670: N. Hurlburt's Response to CBEC Data Request No.4 Attachment
~UTHFNTICI~.TED Contract No. 11TX-15240
STANDARD LARGE GENERATOR INTERCONNECTION AGREEMENT executed by the UNITED STATES OF AMERICA DEPARTMENT OF ENERGY acting by and through the BONNEVILLE POWER ADMINISTRATION and NORTH HURLBURT WIND,LLC
Table of Contents Page
Recitals...... 1
Article 1. De~initions...... 1
Article 2. Effective Date, Term and Termination ...... 10 2.1 Effective Date...... 10 2.2 Term of Agreement ...... 10 2:3 Termination Procedures ...... 10 2.3.1 Written Notice ...... 10 2.3.2 Default...... 10 2.4 Termination Costs...... 10 2.5 Disconnection...... 11 2.6 Survival...... 11
Article 3. Regulatory Filings...... 11 3.1 Filing ...... 11
Article 4. Scope of Service ...... 12 4.1 Interconnection Product Options ...... 12 4.1.1 Energy Resource Interconnection Service...... 12 4.1.1.1 The Product...... 12 4.1.1.2 Transmission Delivery Service Implications ...... 12 4.2 Provision of Service ...... 13 DELGADO EXHIBIT 3 Page 2 of 9
CONFIDENTIAL,SUBJECT TO PROTECTIVE ORDER. UM 1670: N. Hurlburt's Response to CBEC Data Request No.4 Attachment
APPENDIX A INTERCONNECTION FACILITIES, NETWORK UPGRADES AND DISTRIBUTION UPGRADES FOR 266 MW NORTH HURLBURT WIND,LLC'S NORTH HURLBURT WIND PROJECT
1. TRANSMISSION PROVIDER INTERCONNECTION FACILITIES
The Transmission Provider Interconnection Facilities include:
(a) Meters, control hardware, remedial action scheme and associated data collection equipment, communications equipment, and telemetry at Interconnection Customer's 230 kV Ringbus Substation and 230/34.5 kV North Substation collector substation associated with the Generating Facility; and
(b) Equipment to limit wind generation output of the Generating Facility, including trip control of the generation power circuit breakers) at Interconnection Customer's North Substation collector substation.
2. NETWORK UPGRADES
The Network Upgrades include:
(a) Anew 500/230 kV transformer, four 500 kV power circuit breakers and associated disconnect switches, a new 230 kV four power circuit breaker ring bus, shunt capacitors (2 by 86.4 MVAr), instrument transformers, protective relaying, remedial action scheme equipment, communications equipment, and controls at Transmission Provider's,Slatt substation;
(b) Power System Control, remedial action schemes, protective relaying, communications and telemetry at various locations at and beyond the Point of Interconnection; and
(c) Facilities and installation and implementation of the remedial action schemes) at or beyond Slatt Substation.
(d) As of the Effective Date of this Agreement, the Network Upgrades identified in Appendix A, Section 2, are not subject to any tax gross-up to Transmission Provider under the Internal Revenue Code.
3. TEMPORARY NETWORK UPGRADES AND TRANSMISSION PROVIDER'S INTERCONNECTION FACILITIES None.
11TX-15240, North Hurlburt Wind, LLC Page 1 of6 Appendix A Interconnection Facilities, Network Upgrades and Distribution Upgrades DELGADO EXHIBIT 3 Page 3 of 9
CONFIDENTIAL,SUBJECT TO PROTECTIVE ORDER UM 1670: N. Hurlburt's Response to CBEC Data Request No. 4 Attachment
4. INTERCONNECTION CUSTOMER'S INTERCONNECTION FACILITIES
The Interconnection Customer's Interconnection Facilities include:
(a) Interconnection Customer's North Substation collector substation, containing the necessary step up transformers) and associated equipment which connects the step up transformers) to the Generating Facility;
(b) Metering accuracy current transformers and potential transformers at Interconnection Customer's North Substation collector substations;
(c) Interconnection Customer's 230 kV Ringbus Substation; and
(d) Reactive power equipment, including controller, to meet Transmission Provider's requirements for reactive power support, as defined in Appendi~c C section 5(~ of this Agreement. At a minimum, Interconnection Customer must meet the dynamic reactive requirement by incorporating a combination of a dynamic reactive compensation system paired with external shunt capacitors at the 34.5 kV substations to meet power factor correction requirements as defined in Appendix C section 5(~. The master controller of the dynamic reactive compensation system will manage switching of the external shunt capacitor banks and provide voltage regulation.
5. AFFECTED SYSTEM NETWORK UPGRADES None.
6. STAND ALONE NETWORK UPGRADES None.
7. POINT OF INTERCONNECTION AND CHANGE OF OWNERSHIP The Point of Interconnection is the point where Interconnection Customer's 230 kV transmission lines connect to the dead-end structures located inside Transmission Provider's Slatt 230 kV substation, further depicted in Appendix A, Attachment 2. This point is also the Point of Change of Ownership.
8. DISTRIBUTION UPGRADES None.
11TX-15240, North Hurlburt Wind, LLC Page 2 of6 Appendix A Interconnection Facilities, Network Upgrades and Distribution Upgrades DELGADO EXHIBIT 3 Page 4 of 9
CONFIDENTIAL,SUBJECT TO PROTECTIVE ORDER UM 1670: N.Iiurlburt's Response to CBEC Data Request No.5 Attachment
~UTHFNTICATED Contract No. 11TX-15241
STANDARD LARGE GENERATOR INTERCONNECTION AGREEMENT executed by the UNITED STATES OF AMERICA DEPARTMENT OF ENERGY acting by and through the BONNEVILLE POWER ADMINISTRATION and SOUTH HURLBURT WIND,LLC
Table of Contents Page
Recitals...... 1
Article 1. De~nitions...... 1
Article 2. Effective Date, Term and Termination ...... 10 2.1 Effective Date...... :...... 10 2.2 Term of Agreement ...... 10 2.3 Termination Procedures ...... 10 2.3.1 Written Notice ...... 10 2.3.2 Default...... 10 2.4 Termination Costs...... 10 2.b Disconnection...... :...... 1 1 2.6 Survival...... 11
Article 3. Regulatory Filings...... 11 3.1 Filing ...... 11
Article 4. Scope of Service ...... ,...... 12 4.1 Interconnection Product Options ...... 12 4.1.1 Energy Resource Interconnection Service...... 12 4.1.1.1 The Product...... 12 4.1.1.2 Transmission Delivery Service Implications...... 12 4.2 Provision of Service...... 13 DELGADO EXHIBIT 3 Page 5 of 9
CONFIDENTIAL,SUBJECT TO PROTECTIVE ORDER UM 1670: N. Hurlburt's Response to CBEC Data Request No.5 Attachment
APPENDIX A INTERCONNECTION FACILITIES, NETWORK UPGRADES AND DISTRIBUTION UPGRADES FOR 290 MW SOUTH HURLBURT WIND,LLC'S SOUTH HURLBURT WIND PROJECT
1. TRANSMISSION PROVIDER INTERCONNECTION FACILITIES
The Transmission Provider Interconnection Facilities include:
(a) Meters, control hardware, remedial action scheme and associated data collection equipment, communications equipment, and telemetry at Interconnection Customer's 230/34.5 kV Central Substation collector substation associated with the Generating Facility; and
(b) Equipment to limit wind generation output of the Generating Facility, including trip control of the generation power circuit breakers) at Interconnection Customer's Central.Substation collector substation.
2. NETWORK UPGRADES
The Network Upgrades include:
(a) Anew 500/230 kV transformer, four 500 kV power circuit breakers and associated disconnect switches, a new 230 kV four power circuit breaker ring bus, shunt capacitors (2 by 86.4 MVAr), instrument transformers, protective relaying, remedial action scheme equipment, communications equipment, and controls at Transmission Provider's Slatt substation;
(b) Power System Control, remedial action schemes, protective relaying, communications and telemetry at various locations at and beyond the Point of Interconnection; and
(c) Facilities and installation and implementation of the remedial action schemes) at or beyond Slatt Substation.
(d) As of the Effective Date of this Agreement, the Network Upgrades identified in Appendu~ A, Section 2, are not subject to any tax gross-up to Transmission Provider under the Internal Revenue Code.
3. TEMPORARY NETWORK UPGRADES AND TRANSMISSION PROVIDER'S INTERCONNECTION FACILITIES None.
11TX-15241, South Hurlburt Wind, LLC Page 1 of6 Appendix A Interconnection Facilities, Network Upgrades and Distribution Upgrades DELGADO EXHIBIT 3 Page 6 of 9
CONFIDENTIAL,SUBJECT TO PROTECTIVE ORDER UM 1670: N. Hurlburt's Response to CBEC Data Request No. 5 Attachment
4. INTERCONNECTION CUSTOMER'S INTERCONNECTION FACILITIES
The Interconnection Customer's Interconnection Facilities include:
(a) Interconnection Customer's Central Substation collector substation, containing the necessary step up transformers) and associated equipment which connects the step up transformers) to the Generating Facility;
(b) Metering accuracy current transformers and potential transformers at Interconnection Customer's Central Substation collector substation;
(c) Reactive power equipment, including controller, to meet Transmission Provider's requirements for reactive power support, as defined in Appendix C section 5(~ of this Agreement. At a minimum, Interconnection Customer must meet the dynamic reactive requirement by incorporating a combination of a dynamic reactive compensation system paired with external shunt capacitors at the 34.5 kV substations to meet power factor correction requirements as defined in Appendix C section 5(fj. The master controller of the dynamic reactive compensation system will manage switching of the external shunt capacitor banks and provide voltage regulation.
6. AFFECTED SYSTEM NETWORK UPGRADES None.
6. STAND ALONE NETWORK UPGRADES None.
7. POINT OF INTERCONNECTION AND CHANGE OF OWNERSHIP The Point of Interconnection is the point where Interconnection Customer's 230 kV transmission lines connect to the dead-end structures located inside Transmission Provider's Slatt 230 kV substation, further depicted in Appendix A, Attachment 2. This point is also the Point of Change of Ownership.
S. DISTRIBUTION UPGRADES None.
9. DUTIES OF TRANSMISSION PROVIDER
The Transmission Provider shall:
(a) Design, procure, and construct all Network Upgrades identified in this Appendix A;
(b) Coordinate testing and energization of Interconnection Customer's Interconnection Facilities and Generating Facility with Transmission Provider's Transmission System;
11TX-15241, South Hurlburt Wind, LLC Page 2 of6 Appendix A Interconnection Facilities, Network Upgrades and Distribution Upgrades DELGADO EXHIBIT 3 Page 7 of 9
CONFIDENTIAL,SUBJECT TO PROTECTIVE ORDER UM 1670: N. Hurlburt's Response to CBEC Data Request No.6 Attachment
AUTHENTICATED Contract No. 11TX-15242
STANDARD LARGE GENERATOR INTERCONNECTION AGREEMENT executed by the UNITED STATES OF AMERICA DEPARTMENT OF ENERGY acting by and through the BONNEVILLE POWER ADMINISTRATION and HORSESHOE BEND WIND,LLC
Table of Contents Page
Recitals...... :...... 1
Article 1. Definitions...... 1
Article 2. Effective Date, Term and Termination ...... 10 2.1 Effective Date...... 10 2.2 Term of Agreement ...... 10 2.3 Termination Procedures ...... 10 2.3.1 Written Notice ...... 10 2.3.2 Default...... 10 2.4 Termination Costs...... 10 2.5 Disconnection...... :...... 11 2.6 Survival...... 11
Article 3. Regulatory Filings...... 11 3.1 Filing ...... 11
Article 4. Scope of Service...... 12 4.1 Interconnection Product Options ...... 12 4.1.1 ,Energy Resource Interconnection Service...... :...... 12 4.1.1.1 The Product...... 12 4.1.1.2 Transmission Delivery Service Implications ...... :.12 4.2 Provision of Service...... 13 DELGADO EXHIBIT 3 Page 8 of 9
CONFIDENTIAL,SUBJECT TO PROTECTIVE ORDER UM 1670: N. Hurlburt's Response to CBEC Data Request No.6 Attachment
APPENDIX A INTERCONNECTION FACILITIES, NETWORK UPGRADES AND DISTRIBUTION UPGRADES FOR 291 MW HORSESHOE BEND WIND,LLC'S HORSESHOE BEND WIND PROJECT 1. TRANSMISSION PROVIDER INTERCONNECTION FACILITIES
The Transmission Provider Interconnection Facilities include:
(a) Meters, control hardware, remedial action scheme and associated data collection equipment, communications equipment, and telemetry at Interconnection Customer's 230/34.5 kV South Substation collector substation associated with the Generating Facility; and
(b) Equipment to limit wind generation output of the Generating Facility, including trip control of the generation power circuit breakers) at Interconnection Customer's South Substation collector substation. 2. NETWORK UPGRADES
The Network Upgrades include:
(a) Anew 500/230 kV transformer, four 500 kV power circuit breakers and associated disconnect switches, a new 230 kV four power circuit breaker ring bus, shunt capacitors (2 by 86.4 MVAr), instrument transformers, protective relaying, remedial action scheme equipment, communications equipment, and controls at Transmission Provider's Slatt substation;
(b) Power System Control,. remedial action schemes, protective relaying, communications and telemetry at various locations at and beyond the Point of Interconnection; and
(c) Facilities and installation and implementation of the remedial action schemes) at or beyond Slatt Substation.
(d) As of the Effective Date of this Agreement, the Network Upgrades identified in Appendix A, Section 2, are not subject to any tax gross-up to Transmission Provider under the Internal Revenue Code. 3. TEMPORARY NETWORK UPGRADES AND TRANSMISSION PROVIDER'S INTERCONNECTION FACILITIES None.
Page 1 of6 11TX-15242, Horseshoe Bend Wind, LLC Appendix A Interconnection Facilities, Network Upgrades and Distribution Upgrades DELGADO EXHIBIT 3 Page 9 of 9
CONFIDENTIAL,SUBJECT TO PROTECTIVE ORDER UM 1670: N. Hurlburt's Response to CBEC Data Request No.6 Attachment
4. INTERCONNECTION CUSTOMER'S INTERCONNECTION FACILITIES
The Interconnection Customer's Interconnection Facilities include:
(a) Interconnection Customer's South Substation.collector substation, containing the necessary step up transformers) and associated equipment which connects the step up transformers) to the Generating Facility;
(b) Metering accuracy current transformers and potential transformers at Interconnection Customer's South Substation collector substation;
(c) Reactive power equipment, including controller, to meet Transmission Provider's requirements for reactive power support, as defined in Appendix C section 5(~ of this Agreement. At a minimum, Interconnection Customer must meet the dynamic reactive requirement by incorporating a combination of a dynamic reactive compensation system paired with external shunt capacitors at the 34.5 kV substations to meet power factor correction requirements as defined in Appendix C section 5(~. The master controller of the dynamic reactive compensation system will manage switching of the external shunt capacitor banks and provide voltage regulation.
6. AFFECTED SYSTEM NETWORK UPGRADES None.
6. STAND ALONE NETWORK UPGRADES None.
7. POINT OF INTERCONNECTION AND CHANGE OF OWNERSHIP kV The Point of Interconnection is the point where Interconnection Customer's 230 transmission lines connect to the dead-end structures located inside Transmission 2. Provider's Slatt 230 kV substation, further depicted in Appendix A, Attachment This point is also the Point of Change of Ownership.
8. DISTRIBUTION UPGRADES None.
9. DUTIES OF TRANSMISSION PROVIDER
The Transmission Provider shall:
(a) Design, procure, and construct all Network Upgrades identified in this Appendix A;
(b) Coordinate testing and energization of Interconnection Customer's Interconnection Facilities and Generating Facility with Transmission Provider's Transmission System;
Page 2 of6 11TX-15242, Horseshoe Bend Wind, LLC Appendix A Interconnection Facilities, Network Upgrades and Distribution Upgrades DELGADO EXHIBIT 4 Page 1 of 1
DELGADO EXHIBIT 4 SUBMITTED UNDER SEAL
DELGADO EXHIBIT 5 Page 1 of 12
ENERGY FACILITY SITING COUNCIL OF THE STATE OF OREGON
First Amended Site Certificate for Shepherds Flat North
March 12, 2010 DELGADO EXHIBIT 5 Page 2 of 12
The Oregon Energy Facility Siting Council FIRST AMENDED SITE CERTIFICATE FOR SHEPHERDS FLAT NORTH
I. INTRODUCTION The Oregon Energy Facility Siting Council (Council) issues this site certificate for 2 Shepherds Flat North (the facility) in the manner authorized under ORS Chapter 469. This site 3 certificate is a binding agreement between the State of Oregon (State), acting through the 4 Council, and North Hurlburt Wind, LLC (certificate holder) authorizing the certificate holder to 5 construct and operate the facility in Gilliam County, Oregon. [Amendment #I for the Shepherds Flat 6 Wind Farm (SFWF)]
7 The findings of fact, reasoning and conclusions oflaw underlying the terms and 8 conditions of this site certificate are set forth in the following documents, incorporated herein by 9 this reference: (a) the Council's Final Order on the Application for the Shepherds Flat Wind 10 Farm issued on July 25, 2008, (b) the Final Order on Amendment #1 for the Shepherds Flat 11 Wind Farm, and (c) the Final Order on Amendment # 1. In interpreting this site certificate, any 12 ambiguity will be clarified by reference to the following, in order of priority: (1) this First 13 Amended Site Certificate, (2) the Final Order on Amendment #1, (3) the Final Order on 14 Amendment #1 for the Shepherds Flat Wind Farm, (4) the Final Order on the Application for the 15 Shepherds Flat Wind Farm and (5) the record of the proceedings that led to the Final Orders on 16 the Application and Amendment #1 for the Shepherds Flat Wind Farm and to the Final Order on 17 Amendment #1. [Amendment #I (SFWF); Amendment #I] 18 [Text added by Amendment #I (SFWF) was removed by Amendment #I.].
19 The definitions in ORS 469.300 and OAR 345-001-0010 apply to terms used in this site 20 certificate, except where otherwise stated or where the context clearly indicates otherwise.
II. SITE CERTIFICATION 21 1. To the extent authorized by state law and subject to the conditions set forth herein, the State 22 authorizes the certificate holder to construct, operate and retire a wind energy facility, 23 together with certain related or supporting facilities, at the site in Gilliam County, Oregon, as 24 described in Section III ofthis site certificate. ORS 469.401(1). [Amendment#! (SFWF)] 25 2. This site certificate is effective until it is terminated under OAR 345-027-0110 or the rules in 26 effect on the date that termination is sought or until the site certificate is revoked under ORS 27 469.440 and OAR 345-029-0100 or the statutes and rules in effect on the date that revocation 28 is ordered. ORS 469.401(1). 29 3. This site certificate does not address, and is not binding with respect to, matters that were not 30 addressed in the Council's Final Orders on the Application and Amendment #1 for the 31 Shepherds Flat Wind Farm and in the Final Order on Amendment #1. Such matters include, 32 but are not limited to: building code compliance, wage, hour and other labor regulations, 33 local government fees and charges and other design or operational issues that do not relate to 34 siting the facility (ORS 469.401(4)) and permits issued under statutes and rules for which the 35 decision on compliance has been delegated by the federal government to a state agency other 36 than the Council. 469.503(3). [Amendment #I (SFWF); Amendment #I]
SHEPHERDS FLAT NORTH FIRST AMENDED SITE CERTIFICATE- March 12, 2010 Page 1 4. Both the State and the certificate holder shall abide by local ordinances, state law and the 2 rules of the Council in effect on the date this site certificate is executed. ORS 469.401(2). In 3 addition, upon a clear showing of a significant threat to public health, safety or the 4 environment that requires application oflater-adopted laws or rules, the Council may require 5 compliance with such later-adopted laws or rules. ORS 469.401(2). 6 5. For a permit, license or other approval addressed in and governed by this site certificate, the 7 certificate holder shall comply with applicable state and federal laws adopted in the future to 8 the extent that such compliance is required under the respective state agency statutes and 9 rules. ORS 469.401(2).
10 6. Subject to the conditions herein, this site certificate binds the State and all counties, cities and 11 political subdivisions in Oregon as to the approval of the site and the construction, operation 12 and retirement of the facility as to matters that are addressed in and governed by this site 13 certificate. ORS 469.401(3). 14 · 7. Each affected state agency, county, city and political subdivision in Oregon with authority to 15 issue a permit, license or other approval addressed in or governed by this site certificate shall, 16 upon submission of the proper application and payment ofthe proper fees, but without 17 hearings or other proceedings, issue such permit, license or other approval subject only to 18 conditions set forth in this site certificate. ORS 469.401(3). 19 8. After issuance of this site certificate, each state agency or local government agency that 20 issues a permit, license or other approval for the facility shall continue to exercise 21 enforcement authority over such permit, license or other approval. ORS 469.401(3). 22 9. After issuance of this site certificate, the Council shall have continuing authority over the site 23 and may inspect, or direct the Oregon Department of Energy (Department) to inspect, or 24 request another state agency or local government to inspect, the site at any time in order to 25 ensure that the facility is being operated consistently with the terms and conditions of this 26 site certificate. ORS 469.430.
III. DESCRIPTION 1. The Facility (a) The Energy Facility
27 The energy facility is an electric power generating facility with an average electric 28 generating capacity of up to 106 megawatts and a peak generating capacity of not more than 318 29 megawatts that produces power from wind energy. The facility consists of not more than 106 30 wind turbines. The energy facility is described further in the Final Order on Amendment #I for 31 the Shepherds Flat Wind Farm and in the Final Order on Amendment #I. [Amendment #I (SFWF); 32 Amendment #I]
(b) Related or Supporting Facilities 33 The facility includes the following related or supporting facilities described below and in 34 greater detail in the Final Order on Amendment #I for the Shepherds Flat Wind Farm and in the 35 Final Order on Amendment #I: 36 • Power Collection System 37 • Collector Substation
SHEPHERDS FLAT NORTH FIRST AMENDED SITE CERTIFICATE- March 12,2010 Page 2 DELGADO EXHIBIT 5 Page 4 of 12
• Meteorological towers 2 • Field workshop 3 • Control system 4 • Access roads 5 • Additional construction areas 6 [Amendment #I (SFWF): Amendment# 11 7 Power Collection System 8 A power collection system operating at 34.5 kilovolts (kV) transports power from each 9 turbine to a collector substation. The collection system is installed underground at a depth of at 10 least three feet.[Amendment #I] 11 Collector Substations and Interconnection 12 The facility includes a collector substation. The facility includes a 230-kV transmission 13 line between the substation and the interconnection site. The interconnection site is located at the 14 Bonneville Power Administration Slatt Switching Station. [Amendment#! (SFWF)] 15 Meteorological Towers 16 The facility includes two permanent meteorological (met) towers. [Amendment #I (SFWF)] 17 Field Workshop 18 The facility includes a field workshop. Including fenced areas, the field workshop 19 occupies about 1.6 acres. [Amendment #I (SFWF)] 20 Control System 21 A fiber optic communications network links the control panels within each wind turbine 22 to a host computer located in the field workshop. Supervisory, Control and Data Acquisition 23 (SCADA) systems at the field workshop collect operating and performance data from the 24 turbines and the facility's met towers. [Amendment #I (SFWF)] 25 Access Roads 26 The facility includes up to 31 miles of new roads that provide access to the turbine 27 strings. The access roads connect to graveled turbine turnouts at the base of each turbine. 28 [Amendment #I (SFWF)] 29 Temporary Construction Areas
30 During construction, the facility includes temporary laydown areas used to stage 31 construction and store supplies and equipment. The facility includes construction crane paths to 32 move construction cranes between turbine strings.
2. Location of the Facility 33 The facility is located in Gilliam County south of Interstate Highway 84 and east of 34 Arlington, Oregon, between State Highways 19 and 74. The facility is located entirely on private 35 land subject to long-term wind energy leases. [Amendment #I (SFWF)]
IV. CONDITIONS REQUIRED BY COUNCIL RULES 36 This section lists conditions required by OAR 345-027-0020 (Mandatory Conditions in 37 Site Certificates), OAR 345-027-0023 (Site Specific Conditions), OAR 345-027-0028
SHEPHERDS FLAT NORTH FIRST AMENDED SITE CERTIFICATE- March 12,2010 Page 3 DELGADO EXHIBIT 5 Page 5 of 12
ENERGY FACILITY SITING COUNCIL OF THE STATE OF OREGON
First Amended Site Certificate for Shepherds Flat Central
March 12, 2010 DELGADO EXHIBIT 5 Page 6 of 12
The Oregon Energy Facility Siting Council FIRST AMENDED SITE CERTIFICATE FOR SHEPHERDS FLAT CENTRAL
I. INTRODUCTION 1 The Oregon Energy Facility Siting Council (Council) issues this site certificate for the 2 Shepherds Flat Central (the facility) in the manner authorized under ORS Chapter 469. This site 3 certificate is a binding agreement between the State of Oregon (State), acting through the 4 Council, and South Hurlburt Wind, LLC (certificate holder) authorizing the certificate holder to 5 construct and operate the facility in Gilliam County and Morrow County, Oregon. [Amendment #1 6 for the Shepherds Flat Wind Farm (SFWF)] 7 The findings of fact, reasoning and conclusions of law underlying the terms and 8 conditions of this site certificate are set forth in the following documents, incorporated herein by 9 this reference: (a) the Council's Final Order on the Application for the Shepherds Flat Wind 10 Farm issued on July 25, 2008, (b) the Final Order on Amendment #I for the Shepherds Flat 11 Wind Farm, and (c) the Final Order on Amendment #I. In interpreting this site certificate, any 12 ambiguity will be clarified by reference to the following, in order of priority: (1) this First 13 Amended Site Certificate, (2) the Final Order on Amendment #I, (3) the Final Order on 14 Amendment #I for the Shepherds Flat Wind Farm, (4) the Final Order on the Application for the 15 Shepherds Flat Wind Farm and (5) the record of the proceedings that led to the Final Orders on 16 the Application and Amendment #1 for the Shepherds Flat Wind Farm and to the Final Order on 17 Amendment #I. [Amendment # 1 (SFWF); Amendment # 1] 18 [Text added by Amendment# 1• (SFWF) was removed by Amendment# 1]. 19 The definitions in ORS 469.300 and OAR 345-001-0010 apply to terms used in this site 20 certificate, except where otherwise stated or where the context clearly indicates otherwise.
II. SITE CERTIFICATION 21 1. To the extent authorized by state law and subject to the conditions set forth herein, the State 22 authorizes the certificate holder to construct, operate and retire a wind energy facility, 23 together with certain related or supporting facilities, at the site in Gilliam County and 24 Morrow County, Oregon, as described in Section III ofthis site certificate. ORS 469.401(1).
25 2. This site certificate is effective until it is terminated under OAR 345-027-0110 or the rules in 26 effect on the date that termination is sought or until the site certificate is revoked under ORS 27 469.440 and OAR 345-029-0100 or the statutes and rules in effect on the date that revocation 28 is ordered. ORS 469.401(1).
29 3. This site certificate does not address, and is not binding with respect to, matters that were not 30 addressed in the Council's Final Orders on the Application and Amendment #1 for the 31 Shepherds Flat Wind Farm and in the Final Order on Amendment #I. Such matters include, 32 but are not limited to: building code compliance, wage, hour and other labor regulations, 33 local government fees and charges and other design or operational issues that do not relate to 34 siting the facility (ORS 469.401(4)) and permits issued under statutes and rules for which the 35 decision on compliance has been delegated by the federal government to a state agency other 36 than the Council. 469.503(3). [Amendment #1 (SFWF); Amendment #1]
SHEPHERDSFLATCENTRAL FIRST AMENDED SITE CERTIFICATE- March 12,2010 Page 1 DELGADO EXHIBIT 5 Page 7 of 12
4. Both the State and the certificate holder shall abide by local ordinances, state law and the 2 rules of the Council in effect on the date this site certificate is executed. ORS 469.401(2). In 3 addition, upon a clear showing of a significant threat to public health, safety or the 4 environment that requires application oflater-adopted laws or rules, the Council may require 5 compliance with such later-adopted laws or rules. ORS 469.401(2). 6 5. For a permit, license or other approval addressed in and governed by this site certificate, the 7 certificate holder shall comply with applicable state and federal laws adopted in the future to 8 the extent that such compliance is required under the respective state agency statutes and 9 rules. ORS 469.401(2). 10 6. Subject to the conditions herein, this site certificate binds the State and all counties, cities and 11 political subdivisions in Oregon as to the approval ofthe site and the construction, operation 12 and retirement of the facility as to matters that are addressed in and governed by this site 13 certificate. ORS 469.401(3). 14 7. Each affected state agency, county, city and political subdivision in Oregon with authority to 15 issue a permit, license or other approval addressed in or governed by this site certificate shall, 16 upon submission ofthe proper application and payment of the proper fees, but without 17 hearings or other proceedings, issue such permit, license or other approval subject only to 18 conditions set forth in this site certificate. ORS 469.401(3). 19 8. After issuance of this site certificate, each state agency or local government agency that 20 issues a permit, license or other approval for the facility shall continue to exercise 21 enforcement authority over such permit, license or other approval. ORS 469.401(3).
22 9. After issuance of this site certificate, the Council shall have continuing authority over the site 23 and may inspect, or direct the Oregon Department of Energy (Department) to inspect, or 24 request another state agency or local government to inspect, the site at any time in order to 25 ensure that the facility is being operated consistently with the terms and conditions of this 26 site certificate. ORS 469.430.
III. DESCRIPTION 1. The Facility (a) The Energy Facility 27 The energy facility is an electric power generating facility with an average electric 28 generating capacity of up to 97 megawatts and a peak generating capacity of not more than 290 29 megawatts that produces power from wind energy. The facility consists of not more than 116 30 wind turbines. The energy facility is described further in the Final Order on Amendment #1 for 31 the Shepherds Flat Wind Farm and in the Final Order on Amendment #1. [Amendment #I (SFWF); 32 Amendment# I]
(b) Related or Supporting Facilities 33 The facility includes the following related or supporting facilities described below and in 34 greater detail in the Final Order on Amendment #1 for the Shepherds Flat Wind Farm and in the 35 Final Order on Amendment #1: 36 • Power Collection System 37 • Collector Substation
SHEPHERDS FLAT CENTRAL FIRST AMENDED SITE CERTIFICATE- March 12,2010 Page2 DELGADO EXHIBIT 5 Page 8 of 12
• Meteorological towers 2 • Field workshop 3 • Control system 4 • Access roads 5 • Additional construction areas 6 [Amendment# 1 (SFWF); Amendment# 1] 7 Power Collection System 8 A power collection system operating at 34.5 kilovolts (kV) transports power from each 9 turbine to a collector substation. To the extent practicable, the collection system is installed 10 underground at a depth of at least three feet. Segments of the collector system are aboveground. 11 Aboveground segments are installed on single-pole, cross-arm structures. [Amendment#!] 12 Collector Substations and Interconnection 13 The facility includes a collector substation. The facility includes a 230-kV transmission 14 line between the substation and the interconnection site. The interconnection site is located at the 15 Bonneville Power Administration S latt Switching Station. [Amendment# I (SFWF)] 16 Meteorological Towers 17 The facility includes two permanent meteorological (met) towers. [Amendment #I (SFWF)] 18 Field Workshop
19 The facility includes a field workshop. Including fenced areas, the field workshop 20 occupies about 1.6 acres. [Amendment #I (SFWF)] 21 Control System 22 A fiber optic communications network links the control panels within each wind turbine 23 to a host computer located in the field workshop. Supervisory, Control and Data Acquisition 24 (SCADA) systems at the field workshop collect operating and performance data from the 25 turbines and the facility's met towers. [Amendment #1 (SFWF)] 26 Access Roads 27 The facility includes up to 33 miles of new roads that provide access to the turbine 28 strings. The access roads connect to graveled turbine turnouts at the base of each turbine. 29 [Amendment #1 (SFWF); Amendment #1] 30 Temporary Construction Areas 31 During construction, the facility includes temporary laydown areas used to stage 32 construction and store supplies and equipment. The facility includes construction crane paths to 33 move construction cranes between turbine strings.
2. Location of the Facility
34 The facility is located in Morrow County and Gilliam County south of Interstate 35 Highway 84 and east of Arlington, Oregon, between State Highways 19 and 74. The facility is 36 located entirely on private land subject to long-term wind energy leases. [Amendment #I (SFWF)]
SHEPHERDS FLAT CENTRAL FIRST AMENDED SITE CERTIFICATE- March 12,2010 Page3 DELGADO EXHIBIT 5 Page 9 of 12
ENERGY FACILITY SITING COUNCIL OF THE STATE OF OREGON
First Amended Site Certificate for Shepherds Flat South
March 12, 2010 DELGADO EXHIBIT 5 Page 10 of 12
The Oregon Energy Facility Siting Council SITE CERTIFICATE FOR SHEPHERDS FLAT SOUTH
I. INTRODUCTION The Oregon Energy Facility Siting Council (Council) issues this site certificate for the 2 Shepherds Flat South (the facility) in the manner authorized under ORS Chapter 469. This site 3 certificate is a binding agreement between the State of Oregon (State), acting through the 4 Council, and Horseshoe Bend Wind, LLC (certificate holder) authorizing the certificate holder to 5 construct and operate the facility in Gilliam County and Morrow County, Oregon. [Amendment #1 6 for the Shepherds Flat Wind Farm (SFWF)] 7 The findings offact, reasoning and conclusions of law underlying the terms and 8 conditions of this site certificate are set forth in the following documents, incorporated herein by 9 this reference: (a) the Council's Final Order on the Application for the Shepherds Flat Wind 10 Farm issued on July 25, 2008, (b) the Final Order on Amendment #1 for the Shepherds Flat 11 Wind Farm, and (c) the Final Order on Amendment #1. In interpreting this site certificate, any 12 ambiguity will be clarified by reference to the following, in order of priority: (1) this First 13 Amended Site Certificate, (2) the Final Order on Amendment #1, (3) the Final Order on 14 Amendment #1 for the Shepherds Flat Wind Farm, (4) the Final Order on the Application for the 15 Shepherds Flat Wind Farm and (5) the record of the proceedings that led to the Final Orders on 16 the Application and Amendment #1 for the Shepherds Flat Wind Farm. [Amendment #1 (SFWF); 17 Amendment #1] 18 [Text added by Amendment# 1 (SFWF) was removed by Amendment# 1]. 19 The definitions in ORS 469.300 and OAR 345-001-0010 apply to terms used in this site 20 certificate, except where otherwise stated or where the context clearly indicates otherwise.
II. SITE CERTIFICATION 21 1. To the extent authorized by state law and subject to the conditions set forth herein, the State 22 authorizes the certificate holder to construct, operate and retire a wind energy facility, 23 together with certain related or supporting facilities, at the site in Gilliam County and 24 Morrow County, Oregon, as described in Section III ofthis site certificate. ORS 469.401(1). 25 2. This site certificate is effective until it is terminated under OAR 345-027-0110 or the rules in 26 effect on the date that termination is sought or until the site certificate is revoked under ORS 27 469.440 and OAR 345-029-0100 or the statutes and rules in effect on the date that revocation 28 is ordered. ORS 469.401(1).
29 3. This site certificate does not address, and is not binding with respect to, matters that were not 30 addressed in the Council's Final Orders on the Application and Amendment #1 for the 31 Shepherds Flat Wind Farm and in the Final Order on Amendment #1. Such matters include, 32 but are not limited to: building code compliance, wage, hour and other labor regulations, 33 local government fees and charges and other design or operational issues that do not relate to 34 siting the facility (ORS 469.401(4)) and permits issued under statutes and rules for which the 35 decision on compliance has been delegated by the federal government to a state agency other 36 than the Council. 469.503(3). [Amendment #1 (SFWF); Amendment #1]
SHEPHERDS FLAT SOUTH FIRST AMENDED SITE CERTIFICATE- March 12, 2010 Page 1 DELGADO EXHIBIT 5 Page 11 of 12
4. Both the State and the certificate holder shall abide by local ordinances, state law and the 2 rules of the Council in effect on the date this site certificate is executed. ORS 469.401(2). In 3 addition, upon a clear showing of a significant threat to public health, safety or the 4 environment that requires application oflater-adopted laws or rules, the Council may require 5 compliance with such later-adopted laws or rules. ORS 469.401(2). 6 5. For a permit, license or other approval addressed in and governed by this site certificate, the 7 certificate holder shall comply with applicable state and federal laws adopted in the future to 8 the extent that such compliance is required under the respective state agency statutes and 9 rules. ORS 469.401(2). 1o 6. Subject to the conditions herein, this site certificate binds the State and all counties, cities and 11 political subdivisions in Oregon as to the approval of the site and the construction, operation 12 and retirement of the facility as to matters that are addressed in and governed by this site 13 certificate. ORS 469.401(3). , 14 7. Each affected state agency, county, city and political subdivision in Oregon with authority to 15 issue a permit, license or other approval addressed in or governed by this site certificate shall, 16 upon submission of the proper application and payment of the proper fees, but without 17 hearings or other proceedings, issue such permit, license or other approval subject only to 18 conditions set forth in this site certificate. ORS 469.401(3). 19 8. After issuance of this site certificate, each state agency or local government agency that 20 issues a permit, license or other approval for the facility shall continue to exercise 21 enforcement authority over such permit, license or other approval. ORS 469.401(3). 22 9. After issuance of this site certificate, the Council shall have continuing authority over the site 23 and may inspect, or direct the Oregon Department of Energy (Department) to inspect, or 24 request another state agency or local government to inspect, the site at any time in order to 25 ensure that the facility is being operated consistently with the terms and conditions of this 26 site certificate. ORS 469.430.
III. DESCRIPTION 1. The Facility (a) The Energy Facility
27 The energy facility is an electric power generating facility with an average electric 28 generating capacity of up to 97 megawatts and a peak generating capacity of not more than 290 29 megawatts that produces power from wind energy. The facility consists of not more than 116 30 wind turbines. The energy facility is described further in the Final Order on Amendment #1 for 31 the Shepherds Flat Wind Farm and in the Final Order on Amendment #1. [Amendment #I (SFWF); 32 Amendment #I]
(b) Related or Supporting Facilities 33 The facility includes the following related or supporting facilities described below and in 34 greater detail in the Final Order on Amendment #1 for the Shepherds Flat Wind Farm and in the 35 Final Order on Amendment #1: 36 • Power Collection System 37 • Collector Substation
SHEPHERDS FLAT SOUTH FIRST AMENDED SITE CERTIFICATE- March 12, 2010 Page2 DELGADO EXHIBIT 5 Page 12 of 12
• Meteorological towers 2 • Field workshop 3 • Control system 4 • Access roads 5 • Additional construction areas 6 [Amendment #I (SFWF); Amendment #I] 7 Power Collection System 8 A power collection system operating at 34.5 kilovolts (kV) transports power from each 9 turbine to a collector substation. To the extent practicable, the collection system is installed 10 underground at a depth of at least three feet. Segments ofthe collector system are aboveground. 11 Aboveground segments are installed on single-pole, cross-arm structures. [Amendment #I] 12 Collector Substations and Interconnection 13 The facility includes a collector substation. The facility includes a 230-kV transmission 14 line between the substation and the interconnection site. The interconnection site is located at the 15 Bonneville Power Administration Slatt Switching Station. [Amendment #I (SFWF)] 16 Meteorological Towers
17 The facility includes two permanent meteorological (met) towers. [Amendment #I (SFWF)] 18 Field Workshop
19 The facility includes a field workshop. Including fenced areas, the field workshop 20 occupies about 1.4 acres. [Amendment #I (SFWF)] 21 Control System 22 A fiber optic communications network links the control panels within each wind turbine 23 to a host computer located in the field workshop. Supervisory, Control and Data Acquisition 24 (SCADA) systems at the field workshop collect operating and performance data from the 25 turbines and the facility's met towers. [Amendment#! (SFWF)] 26 Access Roads 27 The facility includes up to 27.5 miles of new roads that provide access to the turbine 28 strings. The access roads connect to graveled turbine turnouts at the base of each turbine. 29 [Amendment #I (SFWF); Amendment #I] 30 Temporary Construction Areas 31 During construction, the facility includes temporary laydown areas used to stage 32 construction and store supplies and equipment. The facility includes construction crane paths to 33 move construction cranes between turbine strings.
2. Location of the Facility
34 The facility is located in Morrow County and Gilliam County south of Interstate 35 Highway 84 and east of Arlington, Oregon, between State Highways 19 and 74. The facility is 36 located entirely on private land subject to long-term wind energy leases. [Amendment #I (SFWF)]
SHEPHERDS FLAT SOUTH FIRST AMENDED SITE CERTIFICATE- March 12,2010 Page 3 DELGADO EXHIBIT 6 Page 1 of 1
DELGADO EXHIBIT 6 SUBMITTED UNDER SEAL DELGADO EXHIBIT 7 Page 1 of 7
135 FERC ~ 61,251 UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Jon Wellinghoff, Chairman; Marc Spitzer, Philip D. Moeller, John R. Norris, and Cheryl A. LaFleur.
Horseshoe Bend Wind, LLC Docket Nos. ER11-3381-000 North Hurlburt Wind, LLC ER11-3382-000 South Hurlburt Wind, LLC ER11-3383-000
ORDER ACCEPTING SHARED FACILITIES AGREEMENT AND GRANTING REQUEST FOR WAIVERS
(Issued June 17, 2011)
1. This order accepts the Shepherds Flat Wind Project Shared Facilities Agreement (Shared Facilities Agreement) filed by Horseshoe Bend Wind, LLC, (Horseshoe Bend), North Hurlburt Wind, LLC (North Hurlburt), and South Hurlburt Wind, LLC (South Hurlburt) (collectively, Applicants), effective June 17, 2011, and rants the requested waivers of certain requirements under Order Nos. 888, 1 889,2 and 890,3 and section 35.28, Part 37, and Part 358 of the Commission's regulations. 4
1 Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery ofStranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, FERC Stats. & Regs.~ 31,036 (1996), order on reh 'g, Order No. 888-A, FERC Stats. & Regs. ~ 31,048, order on reh 'g, Order No. 888-B, 81 FERC ~ 61,248 (1997), order on reh'g, Order No. 888-C, 82 FERC ~ 61,046 (1998), a.ff'd in relevant part sub nom. Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000), a.ff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).
2 Open Access Same-Time Information System and Standards of Conduct, Order No. 889, FERC Stats. & Regs.~ 31,035 (1996), order on reh 'g, Order No. 889-A, FERC Stats. & Regs.~ 31,049, reh'gdenied, Order No. 889-B, 81 FERC ~ 61,253 (1997).
3 Preventing Undue Discrimination and Preference in Transmission Service, Order No. 890, FERC Stats. & Regs.~ 31,241, order on reh'g, Order No. 890-A, FERC (continued ... ) DELGADO EXHIBIT 7 Page 2 of 7
Docket No. ER11-3381-000, et al. - 2-
I. Background
2. Applicants state that they are individually developing separate phases of an 845 MW wind generating facility, the Shepherds Flat Wind Facility, that will be located in Eastern Oregon. Applicants also state that each company is an exempt wholesale generator (EWG)5 and has filed, concurrently with this filing, an application for market based rate authority. 6 The total anticipated output of each phase, as discussed further below, has been sold to Southern California Edison Company under three separate 20-year long-term power purchase agreements. In addition, Applicants explain that test power from the Horseshoe Bend facility will begin in August 2011, with completion of all three facilities by the end of2012.
Stats. & Regs.~ 31,261 (2007), order on reh'g, Order No. 890-B, 123 FERC ~ 61,299 (2008), order on reh'g, Order No. 890-C, 126 FERC ~ 61,228 (2009), order on clarification, Order No. 890-D, 129 FERC ~ 61,126 (2009).
4 18 C.F.R. Part 358 (2010); Standards ofConductfor Transmission Providers, Order No. 2004, FERC Stats. & Regs.~ 31,155 (2003), order on reh'g, Order No. 2004-A, FERC Stats. & Regs. ~ 31,161, order on reh 'g, Order No. 2004-B, FERC Stats. & Regs.~ 31,166, order on reh'g, Order No. 2004-C, FERC Sta~s. & Regs.~ 31,172 (2004), order on reh'g, Order No. 2004-D, 110 FERC ~ 61,320 (2005), vacated and remanded as it applies to natural gas pipelines sub nom. National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 (D.C. Cir. 2006); see Standards ofConductfor Transmission· Providers, Order No. 690, FERC Stats. & Regs.~ 31,237, order on reh'g, Order No. 690-A, FERC Stats. & Regs.~ 31,243 (2007); see also Standards ofConductfor Transmission Providers, Order No. 717, FERC Stats. & Regs.~ 31,280 (2008), order on reh'g, Order No. 717-A, FERC Stats. & Regs.~ 31,297, order on reh'g, Order No. 717-B, 129FERC~61,123 (2009),orderonreh'g, OrderNo. 717-C, 131 FERC ~ 61,045 (2010).
5 Horseshoe Bend Wind, LLC, Notice of Self-certification ofExempt Wholesale Generator Status, Docket No. EG09-84-000 (August 12, 2009); North Hurlburt Wind, LLC, Notice of Self-certification of Exempt Wholesale Generator Status, Docket No. EG09-82-000 (August 12, 2009); and South Hurlburt Wind, LLC, Notice of Self-certification of Exempt Wholesale Generator Status, Docket No. EG09-83-000 (August 12, 2009). The Notice of Effectiveness ofExempt Wholesale Generator Status was accepted for the Shepherds Flat Group on November 16,2009.
6 See Horseshoe Bend, Docket No. ER11-3376-000; North Hurlburt, Docket No. ER11-3377-000; and South Hurlburt, Docket No. ER11-3378-000. DELGADO EXHIBIT 7 Page 3 of 7
Docket No. ER11-3381-000, eta!. - 3-
3. Horseshoe Bend and South Hurlburt are each developing a 290 MW wind generating facility that will consist of 116 wind turbines with each having a nameplate capacity of2.5 MW. Similarly, North Hurlburt is developing a 265 MW wind generating facility that will consist of 106 wind turbines. The total output from these facilities will be delivered over Bonneville Power Administration's (Bonneville) transmission system and each project will interconnect to Bonneville's Slatt Substation. The shared transmission facilities consist of a 230 kV ring bus and two 4.5 mile 230 kV lines.
II. Description of Filing
4. On April18, 2011, Horseshoe Bend filed a Shared Facilities Agreement on behalf of itself, North Hurlburt, and South Hurlburt, with a requested effective date of June 17, 2011. Applicants state that each of these three companies is a Co-Tenant under the Shared Facilities Agreement. 7 Thus, according to the Applicants, they will own an undivided tenancy in common interest in the shared facilities that will be allocated according to their respective percentage interest in the nameplate capacity of each facility. Hence, Horseshoe Bend and South Hurlburt will each own an approximate 34 percent interest in the shared facilities and North Hurlburt will have an approximate 31 percent interest. Additionally, Applicants state that all construction costs and operating expenses will be shared by the Co-Tenants in proportion to their percentage interests.
5. The Applicants explain that the Shared Facilities Agreement establishes the terms and conditions under which Applicants will jointly own, utilize, operate, and maintain certain shared facilities, for the sole purpose of interconnecting their respective wind generation facility to Bonneville's transmission grid. Applicants also explain that the Shared Facilities Agreement does not establish rates, terms, or conditions for the provision of a Commission jurisdictional service. Moreover, Applicants contend that no payments will be made among Co-Tenants other than to reimburse shared construction costs and expenses that might have been advanced by one of the Co-Tenants on behalf of the others. Applicants offer that the terms and conditions of the Shared Facilities Agreement are consistent with the terms and conditions of similar agreements that have .
7 0n April18, 2011, in Docket Nos. ER11-3382-000 and ER11-3383-000, North Hurlburt and South Hurlburt filed Certificates of Concurrence with this filing. DELGADO EXHIBIT 7 Page 4 of 7
Docket No. ER11-3381-000, et al. -4-
been approved by the Commission. 8 Accordingly, Applicants request that the Commission accept the Shared Facilities Agreement, effective June 17, 2011.
6. In addition, Applicants also request waiver of the following Commission regulatory requirements applicable to transmission providers: the Open Access Transmission Tariff (OATT), the Open-Access Same-Time Information System (OASIS), and the Standards of Conduct with respect to the shared transmission facilities. Applicants assert that their transmission facilities are "limited and discrete'; because the shared facilities and the individually owned facilities (i.e, certain 34.5 kV collecting lines and a 34.5/230 kV switchyard necessary to connect the generators to the shared facilities) are, even when taken together, limited and discrete and do not form an integrated transmission grid. Finally, Applicants contend that none of these facilities are designed or intended to be used to transmit power to any other entity.
7. Applicants also assert that they each qualify as "small public utility" because even if each of their wind facilities generated the full nameplate capacity during every hour of the year each entity would generate under the 4 million MWh threshold for qualification as a small utility. 9
III. Notice of Filing
8. Notice of the filings in Docket Nos. ER11-3381-000, ER11-3382-000, and ER11-33.83-000 were published in the Federal Register, 76 Fed. Reg. 22,690 (2011), with protests or motions to intervene due on or before May 9, 2011. None were filed.
IV. Discussion
9. The Commission finds the terms and conditions of the Shared Facilities Agreement to be just and reasonable, and not unduly discriminatory or preferential. Accordingly, we will accept the proposed Shared Facilities Agreement, effective June 17, 2011, as requested.
10. In addition, the Commission will grant the Applicants' requested waivers for the shared facilities. Order Nos. 888 and 890 require public utilities to file an OATT prior to providing transmission service. Order No. 889 requires public utilities to establish an OASIS and abide by certain standards of conduct. In prior orders, the Commission has enunciated the standards for waiver of, or exemption from, some or all of the
8 Transmittal Letter at 6 (citing Goshen Phase II, LLC, 133 FERC ~ 61,090 (2010); Evergreen Wind Power V, LLC, 131 FERC ~ 61,239 (2010).
9 !d. at7. DELGADO EXHIBIT 7 Page 5 of 7
Docket No. ER11-3381-000, eta/. - 5-
requirements of Order Nos. 888, 889, and 890. 10 The Commission has stated that the criteria for waiver of the requirements of Order No. 890 and Order No. 2004 11 are unchanged from those used to evaluate requests for waiver under Order Nos. 888 and 889. 12 Order No. 717 did not change those criteria. 13
11. The Commission may grant requests for waiver of Order Nos. 888 and 890 to public utilities that can show that they own, operate, or control only limited and discrete transmission facilities (facilities that do not form an integrated transmission grid), until such time as the public utility receives a request for transmission service. Should the public utility receive a transmission service request, the Commission has determined that the public utility must file an OATT with the Commission within 60 days of the date of the request, and it must comply with any additional requirements that are effective on the date of the request. 14
12. The Commission may also grant a public utility's request for waiver of the requirements set forth in Order No. 889: (1) if the applicant owns, operates, or controls only limited and discrete transmission facilities (rather than an integrated transmission
10 See, e.g., Black Creek Hydro, Inc., 77 PERC~ 61,232, at 61,941 (1996) (Black Creek); Entergy Mississippi, Inc., 112 PERC~ 61,228, at P 22 (2005) (Entergy); see also Goshen Phase II, LLC and Ridgeline Alternative Energy, LLC, 133 PERC ~ 61,090 (2010) (noting that the Commission will evaluate requests for waiver of Order Nos. 888 and 890 utilizing the same criteria).
11 Standards ofConduct for Transmission Providers, Order No. 2004, PERC Stats. & Regs. ~ 31,155 (2003), order on reh 'g, Order No. 2004-A, PERC Stats. & Regs. ~ 31,161, order on reh 'g, Order No. 2004-B, PERC Stats. & Regs.~ 31,166, order on reh'g, Order No. 2004-C, PERC Stats. & Regs.~ 31,172 (2004), order on reh'g, Order No. 2004-D, 110 PERC~ 61,320 (2005), vacated and remanded as it applies to natural gas pipelines sub nom. National Fuel Gas Supply Corp. v. FERC, 468 P.3d 831 (D.C. Cir. 2006); see Standards of Conduct for Transmission Providers, Order No. 690, PERC Stats. & Regs.~ 31,237, order on reh'g, Order No. 690-A, PERC Stats. & Regs.~ 31,243 (2007); see also Standards ofConductfor Transmission Providers, Notice ofProposed Rulemaking, PERC Stats. & Regs.~ 32,611 (2007); Notice ofProposed Rulemaking, PERC Stats. & Regs. ~ 32,630 (2008).
12 See Alcoa Power Generating Inc., 120 PERC~ 61,035, at P 3 (2007); Alcoa Power Generating Inc., 108 PERC~ 61,243, at P 27 (2004).
13 See Order No. 717, PERC Stats. & Regs.~ 31,280 at P 54.
14 Black Creek, 77 PERC~ 61,232 at 61,941. DELGADO EXHIBIT 7 Page 6 of 7
Docket No. ER11-3381-000, et al. -6-
grid); and (2) no other circumstances are present that indicate that waiver would not be justified. 15 The Commission also allows waivers for small public utilities that do not participate in a Commission-approved Independent System Operator (ISO) or Regional Transmission Organization (RT0)16 based on whether such utilities dispose of no more than 4 million MWh annually. 17 Moreover, the Commission has held that waiver of Order No. 889 will remain in effect until the Commission takes action in response to a complaint to the Commission that an entity evaluating its transmission needs could not get the information necessary to complete its evaluation (for OASIS waivers) or an entity complains that the public utility has unfairly used its access to information about transmission to benefit the utility or its affiliate (for Standards of Conduct waivers). 18
13. Based on the Applicants' representations, we find that the shared facilities and the generator tie lines are limited and discrete facilities that do not constitute an integrated transmission system for the purpose of the waiver analysis considered in this order. The Applicants will only utilize the shared facilities to interconnect with, and deliver their own power onto, Bonneville's transmission system. Accordingly, we will grant the Applicants' request for waivers of the requirements for the shared facilities as set forth in Order Nos. 888, 889, and 890, and section 35.28 and Parts 37 and 358 of the Commission's regulations. 19
15 Black Hills Power, Inc., 135 FERC ~ 61,058, at P 3 (2011) (Black Hills). As we explained in Black Hills, membership or non-membership in a tight power pool is no longer a factor in this determination.
16 As we stated in Black Hills, size is not relevant to whether waivers are granted to public utilities that participate in a Commission-approved ISO or RTO. Black Hills, 135 FERC ~ 61,058 at P 2.
17 See Wolverine Power Supply Coop., Inc., 127 FERC ~ 61,159, at P 15 (2009) (Wolverine).
18 Entergy, 112 FERC ~ 61,228 at P 23 (citing Central Minnesota Municipal Power Agency, 79 FERC ~ 61,260, at 62,127 (1997); Easton Utilities Commission, 83 FERC ~ 61,334, at 62,343 (1998)).
19 We note that if there is a material change in facts that affect the waivers granted herein, Applicants must notify the Commission within 30 days of the date of such change. Material Changes in Facts Underlying Waiver ofOrder No. 889 and Part358 of the Commission's Regulations, 127 FERC ~ 61,141, at P 5 (2009); see also Wolverine, 127 FERC ~ 61,159 at P 14 n.21. DELGADO EXHIBIT 7 Page 7 of 7
Docket No. ER11-3381-000, et al. -7-
14. If the Applicants receive a request for transmission service, it must file with the Commission a proforma OATT within 60 days of the date of the request, and must comply with any additional regulatory requirements effective on the date of the request in compliance with Order Nos. 888 and 890. 20
The Commission orders:
(A) The Shared Facilities Agreement is hereby accepted for filing, effective June 17, 2011, as requested.
(B) The Applicants' request for waiver of the requirements of Order Nos. 888, 889, and 890, and of section 35.28, Part 37 and the Standards of Conduct requirements of Part 358 of the Commission's regulations are hereby granted, as discussed in the body of this order.
By the Commission.
(SEAL)
Nathaniel J. Davis, Sr., Deputy Secretary.
20 Black Creek, 77 PERC~ 61,232 at 61,941. DELGADO EXHIBIT 8 Page 1 of 46
UM 1670/Columbia Basin Electric Cooperative November26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Request No. 3:
3. Please describe the "electrical transmission and distribution system" mentions in the Cooperative's complaint, paragraph no. 3, page 3, lines 11-12. What is thehighest voltage of any facility comprising that "electrical and distribution system?"
Response to Data Request No.3:
The requested information is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: The "electrical transmission and distribution system" is all the electric facilities that Columbia Basin Electric Cooperative uses to transmit and distribute electric power to its members. 115 kV. DELGADO EXHIBIT 8 Page 2 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 - CBEC Responses to North Hurlburt Wind Data Requests
Data Request No. 4:
4. Please specify any and all230~kV lines, substations, or other facilities that comprise part(s) of the Cooperative's system, as described in its ans~er to Data Request No.3. Response to Data Request No. 4:
The requested information is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection,. Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative's system does not include any 230 kV lines, substations, or other facilities at this time. DELGADO EXHIBIT 8 Page 3 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest No. 6:
6. Please specify, by voltage(s) and location, the substations(s) or other facilities at which the Cooperative currently received electrical power purchased at wholesale from the Bonneville Power Administration ("BP A"). Response to Data Reguest No. 6:
The requested information is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Alkali Substation 115 kV Columbia Ridge Substation 115 kV Condon Substation 115kV Fossil Substation 69kV Hom Butte Substation 115 kV lone Substation 69kV Jones Canyon Substation 230kV Hinkle Substation 69kV UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest No. 7:
7. Specify which, if any, of the substation(s) or other facilities specified in response to Data Request No. 6 are located outside the geographic area claimed by the Cooperative as its service territory.
Response to Data Reguest No. 7:
The requested information is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Hom Butte Substation Jones Canyon Substation Hinkle Substation DELGADO EXHIBIT 8 Page 5 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Request No. 8(a):
8. Regarding the Cooperative's allegations regarding its rights to provide electric service to South Hurlburt Wind, LLC, regarding the Shepherds Flat Central wind, regarding the Shepherds Flat Central wind project, as stated in its Complaint, paragraph no. 21: a. Please specify, by location and by voltage(s), the retail point(s) of delivery at which the Cooperative would proyide such electrical service. Response to Data Request No. 8(a):
Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or development of a special study, is not commensurate to the needs of this case, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends on the outcome of this proceeding. DELGADO EXHIBIT 8 Page 6 of 46
UM 1670/Columbia Basin Electric Cooperative November 26,2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Request No. 8{b):
8. Regarding the Cooperative's allegations regarding its rights to provide electric service to South Hurlburt Wind, LLC, regarding the Shepherds Flat Central wind, regarding the Shepherds Flat Central wind project, as stated in its Complaint, paragraph no. 21:
b. Is the retail point(s) of delivery specified in answer to Data Request No. 8(a) currently in commercial operation? If not, not please specify the anticipated service date and projected capital cost of such retail point(s) of delivery. Response to Data Request No. 8(b):
Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or development of a special study, is not commensurate to the needs of this case, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not conducted the requested analysis as that analysis would depend upon the outcome of this proceeding. DELGADO EXHIBIT 8 Page 7 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest 8(c):
8. Regarding the Cooperative's allegations regarding its rights to provide electric service to South Hurlburt Wind, LLC, regarding the Shepherds Flat Central wind, regarding the Shepherds Flat Central wind project, as stated in its Complaint, paragraph no. 21: c. To the extent the Cooperative identifies any capital cost in its answer to Data Request No. 8(b ), please specify what portion of such capital cost it would expect South Hurlburt Wind, LLC, to bear as a contribution in aid of construction or other up-front payment to the Cooperative. Resoonse to Data Reguest 8(c):
Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or development of a special study, is not commensurate to the needs of this case, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following:
Columbia Basin Electric Cooperative has not conducted the requested analysis as that analysis would depend upon the outcome of this proceeding. DELGADO EXHIBIT 8 Page 8 of 46
UM 1670/Columbia Basin Electric Cooperative November 26,2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest No. 8(d):
8. Regarding the Cooperative's allegations regarding its rights to provide electric service to South Hurlburt Wind, LLC, regarding the Shepherds Flat Central wind, regarding the Shepherds Flat Central wind project, as stated in its Complaint, paragraph no. 21:
d. Please specify where electric service to South Hurlburt Wind, LLC, would be metered by the Cooperative. Response to Data Request No. 8(d): Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or development of a special study, is not commensurate to the needs of this case, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not conducted the requested analysis as that analysis would depend upon the outcome of this proceeding. DELGADO EXHIBIT 8 Page 9 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Request No. 8(e):
8. Regarding the Cooperative's allegations regarding its rights to provide electric service to South Hurlburt Wind, LLC, regarding the Shepherds Flat Central wind, regarding the Shepherds Flat Central wind project, as stated in its Complaint, paragraph no. 21: e. If the meter(s) specified in response to Data Request No. 8(d) is not, or will not be, owned by the Cooperative, please provide a copy of the contract by which the Cooperative will have the right to use such meters. Response to Data Request No. 8(e): Columbia Basin Electric Cooperative objects to this request as not commensurate to the needs of this case, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative would not enter into such a contract until a date after the conclusion of this proceeding. UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Request No. 9(a):
9. Regarding the Cooperative's allegations regarding its rights to provide electric service to Horseshoebend Wind, LLC, regarding the Shepherds Flat Central wind, regarding the Shepherds Flat Central wind project, as stated in its Complaint, paragraph no. 20: a. Please specify, by location and by voltage(s), the retail point(s) of delivery at which the Cooperative would provide such electrical service. Response to Data Request No. 9(a):
Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or development of a special study, is not commensurate to the needs of this case, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not conducted the requested analysis as that analysis would depend upon the outcome of this proceeding. DELGADO EXHIBIT 8 Page 11 of 46
UM 1670/Columbia Basin Electric Cooperative November 26,2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest No. 9(b):
9. Regarding the Cooperative's allegations regarding its rights to provide electric service to Horseshoebend Wind, LLC, regarding the Shepherds Flat Central wind, regarding the Shepherds Flat Central wind project, as stated in its Complaint, paragraph no. 20: b. Is the retail point(s) of delivery specified in answer to Data Request No. 9(a) currently in commercial operation? If not, not please specify the anticipated service date and projected capital cost of such retail point(s) of delivery. Response to Data Reguest No. 9{b): Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or development of a special study, is not commensurate to the needs of this case, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not conducted the requested analysis as that analysis would depend upon the outcome of this proceeding. DELGADO EXHIBIT 8 Page 12 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest No. 9(c):
9. Regarding the Cooperative's allegations regarding its rights to provide electric service to Horseshoebend Wind, LLC, regarding the Shepherds Flat Central wind, regarding the Shepherds Flat Central wind project, as stated in its Complaint, paragraph no. 20:
c. To the extent the Cooperative identifies any capital cost in its answer to Data Request No. 9(b), please specify what portion of such capital cost it would expect South Hurlburt Wind, LLC, to bear as a contribution in aid of construction or other up·front payment to the Cooperative. Response to Data Reguest No. 9(c): Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or development of a special study, is not commensurate to the needs of this case, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following:
Columbia Basin Electric Cooperative has not conducted the requested analysis as that analysis would depend upon the outcome of this proceeding. UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Request No. 9(d):
9. Regarding the Cooperative's allegations regarding its rights to provide electric service to Horseshoebend Wind, LLC, regarding the Shepherds Flat Central wind, regarding the Shepherds Flat Central wind project, as stated in its Complaint, paragraph no. 20:
d. Please specify where electric service to South Hurlburt Wind, LLC, woul~ be metered by the Cooperative. Response to Data Request No. 9(d): Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or development of a special study, is not commensurate to the needs of this case, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not conducted the requested analysis as that analysis would depend upon the outcome of this proceeding. DELGADO EXHIBIT 8 Page 14 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest No. 9(e):
9. Regarding the Cooperative's allegations regarding its rights to provide electric service to Horseshoebend Wind, LLC, regarding the Shepherds Flat Central wind, regarding the Shepherds Flat Central wind project, as stated in its Complaint, paragraph no. 20:
e. If the meter(s) specified in response to Data Request No. 9(d) is not, or will not be, owned by the Cooperative, please provide a copy of the contract by which the Cooperative will have the right to use such meters. Response to Data Reguest No. 9(e): Columbia Basin Electric Cooperative objects to this request as not commensurate to the needs of this case, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative would not enter into such a contract until a date after the conclusion of this proceeding. DELGADO EXHIBIT 8 Page 15 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest No. 10:
10. Provide a copy of any agreement between the Cooperative and PacifiCorp, d.b.a. Pacific Power, pursuant to which either party has permitted the other party to provide retail utility service within its service territory. If no such agreement exists, so state. Response to Data Reguest No. 10:
The requested information is not commensurate to the needs of this case, vague, ambiguous, and not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative does not have any written agreements whereby Pacific Power may provide retail utility service within its service territory. DELGADO EXHIBIT 8 Page 16 of 46
UM 1670/Columbia Basin Electric Cooperative November 26,2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest No. 15:
15. Please identify the rate that the Cooperative would seek to impose for electrical service on: a. Shepherds Flat South, and b. Shepherds Flat Central. Response to Data Reguest No. 15:
Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or calls for the development of a special study and as not reasonably calculated to lead to the discovery of admissible evidence. Without waiving these objections, Columbia Basin Electric Cooperative response as follows: Columbia Basin Electric Cooperative has not conducted the requested analysis. DELGADO EXHIBIT 8 Page 17 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest No. 16:
16. Please specify the margin (i.e., anticipated customer revenue in excess of cost of serving that customer) that the Cooperative would incorporate into the rates specified in each of its responses to Data Request No. 15(a) and 15(b). Please specify the margin in terms of dollar amounts and percentages. You may assume a load factor of22 percent in calculating margin amounts. Response to Data Reguest No. 16:
Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or calls for the development of a special study and as not reasonably calculated to lead to the discovery of admissible evidence. Without waiving these objections, Columbia Basin Electric Cooperative response as follows: Columbia Basin Electric Cooperative has not conducted the requested analysis. DELGADO EXHIBIT 8 Page 18 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Request No. 18:
18. Regarding the Cooperative's rate(s): a. Please explain whether the rate and separately delineated charged specified in your response to Data Request No. 15(a) is the same rate that the Cooperative applies to its existing customer in the class of service that includes station power service. If it is not the same rate, explain why the Cooperative would propose a different rate for Shepherds Flat South. b. If your answer to Data Request No. 18(a) is that the Cooperative has no other station-service l~ads, please explain wh~ther the rate and separately delineated charges specified in your response to Data Request No. 15(a) is the same rate that the Cooperative applies to the class of service nearest approximating station service load. If it is not the same rate, explain why the Cooperative would propose a different rate for Shepherds Flat South. Response to Data Request No. 18: Columbia Basin Electric Cooperative objects to these requests as requesting information not maintained in the ordinary course of business or calls for development of a special study and as not reasonably calculated to lead to the discovery of admissible evidence. Without waiving these objections, Columbia ~asin Electric Cooperative response as follows: Columbia Basin Electric Cooperative has not conducted the requested analysis. UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Request No. 19:
19. If the Cooperative would impose other charges (in addition to the rate specified in response to Data Request No. 15), please separately delineate each and every such charge. Response to Data Request No. 19:
Columbia Basins Electric Cooperative objects to this request because the requested information is not maintained in the ordinary course of business or calls for the development of a special study relevant or is not reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not conducted the requested analysis. DELGADO EXHIBIT 8 Page 20 of 46
UM 1670/Columbia Basin Electric Cooperative November 26, 2013 CBEC Responses to North Hurlburt Wind Data Requests
Data Reguest No. 22:
22. Please specify the total number of customers to whom the Cooperative currently provides electrical service. Of that total, what percentage are residential customers? Response to Data Reguest No. 22:
The requested information is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: The total number of meters served by Columbia Basin Electric Cooperative is 3,851. The percentage of that total the number of meters that serve residential loads is 80.4 percent. DELGADO EXHIBIT 8 Page 21 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat Data Request No. 1
1. On the previously-supplied Confidential Attachment to 2-SCF-1 [SIC] (CAITHNESS00451 0), which was created by CSF for purposes of this contested case at the request of Columbia Basin and subject to the Protective Order in this case, please identify the following: c. Specifically by voltage and location, any and all transmission lines, distribution lines, transformers, or substations that are owned or operated by Columbia Basin anywhere in the land depicted on the map.
Response to Caithness Shepherds Flat Data Request No. l.e. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study and such information is already in the possession of the Caithness Affiliate defendants. DELGADO EXHIBIT 8 Page 22 of 46
UM 1670/Colurnbia Basin Electric Cooperative September 30, 2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat Data Request No. 1
1. On the previously-supplied Confidential Attaclunent to 2-SCF-1 [SIC] (CAITHNESS004510), which was created by CSF for purposes of this contested case at the request of Columbia Basin and subject to the Protective Order in this case, please identify the following:
d. The location or locations of Columbia Basin's proposed point of delivery for electric service to South Hurlburt Wind, LLC, and the voltage(s) of each such delivery point.
Response to Caithness Shepherds Flat Data Request No. l.d.
Please see response to Caithness Shepherds Flat Data Request No. 2.a. Subpart 8.a. and b. South Hurlburt Wind, LLC has not made a request for service to Columbia Basin Electric Cooperative. The Cooperative would have to speculate as to the point of delivery and voltage that South Hurlburt Wind, LLC would identify for service. DELGADO EXHIBIT 8 Page 23 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat Data Request No. 1
1. On the previously-supplied Confidential Attachment to 2-SCF-1 [SIC] (CAITHNESS004510), which was created by CSF for purposes of this contested case at the request of Columbia Basin and subject to the Protective Order in this case, please identify the following:
e. The location or locations at which Columbia Basin asserts it could provide a point of delivery for electrical service to South Hurlburt Wind, LLC, and the voltage(s) of each such delivery point. For any asserted point of delivery that would require the construction of additional facilities, please describe those facilities and the expected costs associated.
Response to Caithness Shepherds Flat Data Request No. l.e. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study.
CERTIFICATE OF FILING AND SERVICE
Docket No. UM 1670 I hereby certify that on the date given below the original and one true and correct copy of the foregoing DECLARATION OF JEFFREY DELGADO IN SUPPORT OF CAITHNESS DEFENDANTS’ MOTION FOR SUMMARY DETERMINATION were sent by email and first-class mail to:
Public Utility Commission of Oregon 3930 Fairview Industrial Drive SE PO Box 1088 Salem, OR 97308-1088 E-mail: [email protected]
On the same date, a true and correct copy of the foregoing document was sent to the following parties by electronic mail as indicated on the attached Service List. DATED this 6th day of October, 2014.
DAVIS WRIGHT TREMAINE LLP
By: /s/ Derek D. Green John A. Cameron, OSB #92873 Derek D. Green, OSB #042960 1300 SW Fifth Avenue, Suite 2400 Portland OR 97201 Tel: 503-241-2300 Fax: 503-778-5299 Email: [email protected] Email: [email protected]
Of Attorneys for Defendants North Hurlburt Wind, LLC, South Hurlburt Wind, LLC, Horseshoe Bend Wind, LLC and Caithness Shepherds Flat, LLC
Page 28 – DECL. OF JEFFREY DELGADO ISO CAITHNESS’ SUM. DETERMINATION MOTION
DAVIS WRIGHT TREMAINE LLP DWT 24527873v3 0084118-000016 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main (503) 778-5299 fax
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat Data Request No. 1
1. On the previously-supplied Confidential Attachment to 2-SCF-1 [SIC] (CAITHNESS004510), which was created by CSF for purposes of this contested case at the request of Columbia Basin and subject to the Protective Order in this case, please identify the following: f. The location or locations of Columbia Basin's proposed points of delivery for electric service to Horseshoe Bend Wind, LLC, and the voltage(s) of each such delivery point.
Response to Caithness Shepherds Flat Data Request No. l.f. Please see response to Caithness Shepherds Flat Data Request No. 2.b. Subpart 9.a. and b. Horseshoe Bend Wind, LLC has not made a request for service for its backup loads to Columbia Basin Electric Cooperative. The Cooperative would have to speculate as to the point of delivery and voltage that Horsebend Bend Wind, LLC would identify for service. DELGADO EXHIBIT 8 Page 25 of 46
UM 1670/Columbia Basin Electric Cooperative September 30, 2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat Data Request No. 1
1. On the previously-supplied Confidential Attachment to 2-SCF-1 [SIC] (CAITHNESS004510), which was created by CSF for purposes of this contested case at the request of Columbia Basin and subject to the Protective Order in this case, please identify the following: g. The location or locations at which Columbia Basin asserts it could provide a point of delivery for electrical service to Horseshoe Bend Wind, LLC, and the voltage(s) of each such delivery point. For any asserted point of delivery that would require the construction of additional facilities, please describe those facilities and the expected costs associated.
Response to Caithness Shepherds Flat Data Request No. l.g. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study. DELGADO EXHIBIT 8 Page 26 of 46
UM 1670/Columbia Basin Electric Cooperative September 30, 2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.a. Please provide whether Columbia Basin's November 26, 2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.a. Response to NHW's Data Request No. 8 (all subparts)
Response to Caithness Shepherds Flat, LLC Request No. 2.a. Subpart 8.a. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study, is not commensurate to the needs of this case, requires speculation, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends upon the outcome of this proceeding. Additionally, Columbia Basin Electric Cooperative provides retail service at the voltage and points of delivery identified and requested by its members. For instance, Horseshoe Bend Wind, LLC made a request for electrical service to Columbia Basin Electric Cooperative and in that request identified the voltage and the point of delivery for such retail electric service. South Hurlburt Wind, LLC has never made a request for electrical service to Columbia Basin Electric Cooperative to identify the voltage or the point of deliver for such retail service. DELGADO EXHIBIT 8 Page 27 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.a.
Please provide whether Columbia Basin's November 26,2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.a. Response to NHW's Data Request No.8 (all subparts)
Response to Caithness Shepherds Flat, LLC Request No. 2.a.
Subpart 8.b. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study, is not commensurate to the needs of this case, requires speculation, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends upon the outcome of this proceeding. Additionally, Columbia Basin Electric Cooperative provides retail service at the voltage and points of delivery identified and requested by its members. For instance, Horseshoe Bend Wind, LLC made a request for electrical service to Columbia Basin Electric Cooperative and in that request identified the voltage and the point of delivery for such retail electric service. South Hurlburt Wind, LLC has never made a request for electrical service to Columbia Basin Electric Cooperative to identify the voltage or the point of deliver for such retail service. Columbia Basin Electric Cooperative would have to speculate as to the point of delivery that South Hurlburt Wind, LLC would identify. DELGADO EXHIBIT 8 Page 28 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.a.
Please provide whether Columbia Basin's November 26,2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.a. Response to NHW's Data Request No. 8 (all subparts)
Response to Caithness Shepherds Flat, LLC Request No. 2.a.
Subpart S.c. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study, is not commensurate to the needs of this case, requires speculation, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends upon the outcome of this proceeding. Additionally, Columbia Basin Electric Cooperative provides retail service at the voltage and points of delivery identified and requested by its members. For instance, Horseshoe Bend Wind, LLC made a request for electrical service to Columbia Basin Electric Cooperative and in that request identified the voltage and the point of delivery for such retail electric service.
South Hurlburt Wind, LLC has never made a request for electrical service to Columbia Basin Electric Cooperative to identify the voltage or the point of deliver for such retail service. Columbia Basin Electric Cooperative would have to speculate as to the point of delivery that South Hurlburt Wind, LLC would identify. Absent that information, Columbia Basin Electric Cooperative cannot estimate capital costs associated with such service; DELGADO EXHIBIT 8 Page 29 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.a. Please provide whether Columbia Basin's November 26,2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.a. Response to NHW's Data Request No.8 (all subparts) Response to Caithness Shepherds Flat, LLC Request No. 2.a. Subpart S.d. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study, is not commensurate to the needs of this case, requires speculation, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends upon the outcome of this proceeding. Additionally, Columbia Basin Electric Cooperative provides retail service at the voltage and points of delivery identified and requested by its members. For instance, Horseshoe Bend Wind, LLC made a request for electrical service to Columbia Basin Electric Cooperative and in that request identified the voltage and the point of delivery for such retail electric service. South Hurlburt Wind, LLC has never made a request for electrical service to Columbia Basin Electric Cooperative to identify the voltage or the point of deliver for such retail service. Columbia Basin Electric Cooperative would have to speculate as to where Columbia Basin Electric Cooperative would install meters for such service. DELGADO EXHIBIT 8 Page 30 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.a. Please provide whether Columbia Basin's November 26,2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below.
2.a. Response to NHW's Data Request No. 8 (all subparts)
Response to Caithness Shepherds Flat, LLC Request No. 2.a. Subpart 8.e. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study, is not commensurate to the needs of this case, requires speculation, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends upon the outcome of this proceeding. Additionally, Columbia Basin Electric Cooperative provides retail service at the voltage and points of delivery identified and requested by its members. For instance, Horseshoe Bend Wind, LLC made a request for electrical service to Columbia Basin Electric Cooperative and in tha~ request identified the voltage and the point of delivery for such retail electric service. South Hurlburt Wind, LLC has never made a request for electrical service to Columbia Basin Electric Cooperative to identify the voltage or the point of deliver for such retail service. Columbia Basin Electric Cooperative would have to speculate as to whether Columbia Basin Electric Cooperative would or would not own the meters used to measure power deliveries to the South Hurlburt Wind, LLC. DELGADO EXHIBIT 8 Page 31 of 46
UM 1670/Columbia Basin Electric Cooperative September 30, 2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.b. Please provide whether Columbia Basin's November 26, 2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.b. Response to NHW's Data Request No.9 (all subparts)
Response to Caithness Shepherds Flat, LLC Request No. 2.b. Subpart 9.a. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study, is not commensurate to the needs of this case, requires speculation, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends upon the outcome of this proceeding. Additionally, Columbia Basin Electric Cooperative provides retail service at the voltage and points of delivery identified and requested by its members. For instance, Horseshoe Bend Wind, LLC made a request for electrical service from Columbia Basin Electric Cooperative to serve its maintenance building. In that request Horseshoe B~nd Wind, LLC identified the voltage and the point of delivery for such retail electric service. DELGADO EXHIBIT 8 Page 32 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.b. Please provide whether Columbia Basin's November 26,2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.b. Response to NHW's Data Request No.9 (all subparts)
Response to Caithness Shepherds Flat, LLC Request No. 2.b. Subpart 9.b. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study, is not commensurate to the needs of this case, requires speculation, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends upon the outcome of this proceeding.
Additionally, Columbia Basin Electric Cooperative provides retail service at the voltage and points of delivery identified and requested by its members. For instance, Horseshoe Bend Wind, LLC made a request for electrical service from Columbia Basin Electric Cooperative for service to its maintenance building and in that request identified the voltage and the point of delivery for such retail electric service. Horseshoe Bend Wind, LLC has never made a request for electrical service to Columbia Basin Electric Cooperative other than its request for service to its maintenance building, which Columbia Basin Electric Cooperative currently serves. Columbia Basin Electric Cooperative would have to speculate as to the point of deliver for additional retail service to Horseshoe Bend Wind, LLC, which it has not requested. DELGADO EXHIBIT 8 Page 33 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.b. Please provide whether Columbia Basin's November 26, 2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.b. Response to NHW's Data Request No.9 (all subparts) Response to Caithness Shepherds Flat, LLC Request No. 2.b. Subpart 9.c. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study, is not commensurate to the needs of this case, requires speculation, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends upon the outcome of this proceeding. Additionally, Columbia Basin Electric Cooperative provides retail service at the voltage and points of delivery identified and requested by its members. For instance, Horseshoe Bend Wind, LLC made a request for electrical service from Columbia Basin Electric Cooperative for its maintenance building and in that request identified the voltage and the point of delivery for such retail electric service. Horseshoe Bend Wind, LLC has never made a request for electrical service to Columbia Basin Electric Cooperative other than its request for service to its maintenance building, which Columbia Basin Electric Cooperative currently serves. Columbia Basin Electric Cooperative would have to speculate as to the point of deliver for additional retail service to Horseshoe Bend Wind, LLC, which it has not requested. Absent that information, Columbia Basin Electric Cooperative cannot estimate capital costs associated with such service. DELGADO EXHIBIT 8 Page 34 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.b.
Please provide whether Columbia Basin's November 26,2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.b. Response to NHW's Data Request No. 9 (all subparts) Response to Caithness Shepherds Flat, LLC Request No. 2.b.
Subpart 9.d. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study, is not commensurate to the needs of this case, requires speculation, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends upon the outcome of this proceeding. Additionally, Columbia Basin Electric Cooperative provides retail service at the voltage and points of delivery identified and requested by its members. For instance, Horseshoe Bend Wind, LLC made a request for electrical service from Columbia Basin Electric Cooperative for its maintenance building and in that request identified the voltage and the point of delivery for such retail electric service. Horseshoe Bend Wind, LLC has never made a request for electrical service to Columbia Basin Electric Cooperative other than its request for service to its maintenance building, which Columbia Basin Electric Cooperative currently serves. Columbia Basin Electric Cooperative would have to speculate as to the point of deliver for additional retail service to Horseshoe Bend Wind, LLC, which it has not requested. Columbia Basin Electric Cooperative would have to speculate as to where Columbia Basin Electric Cooperative would install meters for such service. DELGADO EXHIBIT 8 Page 35 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.b.
Please provide whether Columbia Basin's November 26, 2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.b. Response to NHW's Data Request No.9 (all subparts)
Response to Caithness Shepherds Flat, LLC Request No. 2.b. Subpart 9.e. Columbia Basin Electric Cooperative objects to this request as requesting information not maintained in the ordinary course of business or requires the development of a special study, is not commensurate to the needs of this case, requires speculation, and is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objection, Columbia Basin Electric Cooperative provides the following: Columbia Basin Electric Cooperative has not done this analysis as the analysis depends upon the outcome of this proceeding.
Additionally, Columbia Basin Electric Cooperative provides retail service at the voltage and points of delivery identified and requested by its members. For instance, Horseshoe Bend Wind, LLC made a request for electrical service from Columbia Basin Electric Cooperative for its maintenance building and in that request identified the voltage and the point of delivery for such retail electric service. Horseshoe Bend Wind, LLC has never made a request for electrical service to Columbia Basin Electric Cooperative other than its request for service to its maintenance building, which Columbia Basin Electric Cooperative currently serves. Columbia Basin Electric Cooperative would have to speculate as to the point of deliver for additional retail service to Horseshoe Bend Wind, LLC, which it has not requested. Columbia Basin Electric Cooperative would have to speculate as to whether Columbia Basin Electric Cooperative would or would not own the meters used to measure power deliveries to the Horseshoe Bend Wind, LLC. DELGADO EXHIBIT 8 Page 36 of 46
UM 1670/Columbia Basin Electric Cooperative September 30, 2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.c.
Please provide whether Columbia Basin's November 26,2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.c. Response to NHW's Data Request No. 10, specifically answering the question whether or not Columbia Basin has a written agreement with Pacific Power permitting Columbia Basin to provide utility service at a delivery point within Pacific Power's service territory.
Response to Caithness Shepherds Flat, LLC Data Request No 2.c. Columbia Basin Electric Cooperative objects to this request as requesting information that seeks a legal conclusion, is not commensurate with the needs of this case, vague, ambiguous, and not relevant or reasonably calculated to lead to the discovery of admissible evidence. Subject to such objections, Columbia Basin Electric Cooperative provides the following: This data request seeks a legal conclusion as to requesting whether Columbia Basin Electric Cooperative has an agreement "to provide utility service" within Pacific Power's service territory. The term "utility service" requires a legal conclusion under ORS 758. As such, no answer is required. DELGADO EXHIBIT 8 Page 37 of 46
UM 1670/Columbia Basin Electric Cooperative September 30, 2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.
Please provide whether Columbia Basin's November 26, 2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests (''NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below.
2.d. Response to NHW's Data Request No. 15.
Response to Caithness Shepherds Flat, LLC Request No. 2.d. Columbia Basin Electric Cooperative objects to this request as requesting information that is not commensurate with the needs of this case, vague, ambiguous, irrelevant and requires speculation. For instance, the request is vague and ambiguous since Shepherds Flat South, a.k.a. as Horseshoe Bend Wind, LLC made a request for electrical service from Columbia Basin Electric Cooperative for its maintenance building and Columbia Basin Electric currently serves that load at its small commercial rate. Shepherds Flat South and Central have not requested service from Columbia Basin Electric Cooperative for electric service to their backup loads. Columbia Basin Electric Cooperative would have to speculate as to what service these projects would request and details of such requests. Subject to such objections, Columbia Basin Electric Cooperative provides the following information: If Shepherds Flat South and Central requested service for backup power needs, the Cooperative would likely provide that service at its rate Schedule 11, if rate Schedule 11 is applicable to the requested service. The current rates under rate schedule 11 are set forth in Attachment CSF 2.d. DELGADO EXHIBIT 8 Page 38 of 46
UM 1670/Columbia Basin Electric Cooperative September 30, 2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.
Please provide whether Columbia Basin's November 26, 2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.e. Response to NHW's Data Request No. 16.
Response to Caithness Shepherds Flat, LLC Data Request l.e. Columbia Basin Electric Cooperative objects to this request as requesting information that is not commensurate with the needs of this case, vague, ambiguous, not relevant, requires speculation, and requests information not maintained in the ordinary course of business or requires the development of a special study. Subject to such objections, Columbia Basin Electric Cooperative provides the following information: Generally, under rate Schedule 11, Columbia Basin Electric Cooperative realizes a margin of approximately nine percent. That level of margin can vary from year to year, however, depending upon Columbia Basin Electric Cooperative's costs and revenue. DELGADO EXHIBIT 8 Page 39 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2. Please provide whether Columbia Basin's November 26,2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests ("NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current information. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.e. Response to NHW's Data Request No. 18.
Response to Caithness Shepherds Flat, LLC Data Request 2.f. Columbia Basin Electric Cooperative objects to this request as requesting information that is not commensurate with the needs of this case, vague, ambiguous, irrelevant, requires speculation, and requests information not maintained in the ordinary course of business or requires the development of a special study. For instance, the term "station-service loads" is vague and ambiguous and the data request does not define that term. Subject to such objections, Columbia Basin Electric Cooperative provides the following information: Columbia Basin Electric Cooperative would provide service to the backup power loads of Shepherds Flat Central and South with rate Schedule 11. DELGADO EXHIBIT 8 Page 40 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 2.
Please provide whether Columbia Basin's November 26,2013 responses to the following Data Requests contained in North Hurlburt Wind, LLC's First Set of Data Requests (''NHW's Data Requests") accurately reflects [SIC] Columbia Basin's present position based on current infonnation. To the extent Columbia Basin's positions has changed as to any response, please provide the updated response below. 2.e. Response to NHW's Data Request No. 19.
Response to Caithness Shepherds Flat, LLC Data Request 2.g. Columbia Basin Electric Cooperative objects to this request as requesting infonnation that is not commensurate with the needs of this case, vague, ambiguous, irrelevant, requires speculation, and requests infonnation not maintained in the ordinary course of business or requires the development of a special study. Subject to such objections, Columbia Basin Electric Cooperative provides the following infonnation: Columbia Basin Electric Cooperative would provide service to the backup power loads of Shepherds Flat Central and South with rate Schedule 11. DELGADO EXHIBIT 8 Page 41 of 46
UM 1670/Columbia Basin Electric Cooperative September 30,2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 3.
Please identify and quantify, separately, any and all incremental power, transmission, distribution or overhead costs that would be incurred by the Cooperative as the result of its provision of station power service to South Hurlburt Wind, LLC. For purposes of this data request, "incremental cost" means cost differences from, or in addition to, costs presently being incurred by the Cooperative without station power service to South Hurlburt wind, LLC.
Response to Caithness Shepherds Flat, LLC Data Request No. 3. Columbia Basin Electric Cooperative objects to this request as requesting information that is not commensurate with the needs of this case, vague, ambiguous, irrelevant, requires speculation, and requests information not maintained in the ordinary course of business or requires the development of a special study. For instance, South Hurlburt Wind, LLC has not made a request for service from the Cooperative and has not provided necessary information for Columbia Basin Electric Cooperate to even begin answering this data request. Columbia Basin Electric Cooperative would have to speculate as to what service South Hurlburt Wind, LLC would request and numerous details as to that service. Subject to such objections, Columbia Basin Electric Cooperative provides the following information: Columbia Basin Electric Cooperative would provide service to the backup power loads of South Hurlburt Wind, LLC with rate Schedule II. The rates in Schedule 11 are based on Columbia Basin Electric Cooperative's power costs, which in this case are primarily power costs from BPA at its Tier 2 rates. DELGADO EXHIBIT 8 Page 42 of 46
UM 1670/Columbia Basin Electric Cooperative September 30, 2014 CSF First Set of Data Requests to CBEC
Caithness Shepherds Flat, LLC Data Request 3. Please identify and quantify, separately, any and all incremental power, transmission, distribution or overhead costs that would be incurred by the Cooperative as the result of its provision of station power service to Horseshoe Bend Wind, LLC. For purposes of this data request, "incremental cost" means cost differences from, or in addition to, costs presently being incurred by the Cooperative without station power service to Horseshoe Bend Wind, LLC.
Response to Caithness Shepherds Flat Data Request No. 4. Columbia Basin Electric Cooperative objects to this request as requesting information that is not commensurate with the needs of this case, vague, ambiguous, irrelevant, requires speculation, and requests information not maintained in the ordinary course of business or requires the . development of a special study. For instance, Columbia Basin Electric Cooperative currently does provide power to serve the station service loads of Horseshoe Bend Wind, LLC. Horseshoe Bend Wind, LLC has not made a request for service from Columbia Basin Electric Cooperative to serve its backup power loads and has not provided necessary information for Columbia Basin Electric Cooperate to even begin answering this data request. Columbia Basin Electric Cooperative would have to speculate as to what service Horseshoe Bend Wind, LLC would request and numerous details as to that service. Subject to such objections, Columbia Basin Electric Cooperative provides the following information: Columbia Basin Electric Cooperative would provide service to the backup power loads of Horseshoe Bend Wind, LLC with rate Schedule 11. The rates in Schedule 11 are based on Columbia Basin Electric Cooperative's power costs, which in this case are primarily power costs from BP A at its Tier 2 rates. DELGADO EXHIBIT 8 Page 43 of 46
1 Raymond S. Kindley OSB No. 964910 2 Kindley Law, P.C. P.O. Box569 3 West Linn, OR 97068 Tel: {503) 206-1010 4 [email protected]
5
6 BEFORE THE
7 PUBLIC UTILITY COMMISSION OF OREGON
8 COLUMBIA BASIN ELECTRIC ) Docket No. UM 1670 COOPERATIVE, INC. an Oregon ) 9 cooperative corporation ) COLUMBIA BASIN ELECTRIC Complaintant, ) COOPERATIVE, INC'S RESPONSE 10 vs. ) TO NORTH HURLBURT WIND, LLC'S PACIFICORP, dba Pacific Power, an ) FIRST REQUEST FOR ADMISSIONS 11 Oregon business corporation, ) 12 Defendant ) and ) 13 NORTH HURLBURT WIND, LLC, a ) foreign limited liability company, ) 14 Defendant ) 15
16 To: Defendant, North Hurlburt Wind, LLC, ("Defendant") by and through its counsel of
17 record, John Cameron, Davis, Wright, Tremaine, LLP, 1300 S.W. 5th Avenue, Suite 2400, 18 Portland, OR 97201-5610. 19 PLEASE TAKE NOTE that in response to Defendant's first set of request for admissions, 20 Complaintant Columbia Basin Electric Cooperative, Inc. ("Complaintant") hereby responds as 21 follows: 22 GENERAL OBJECTIONS
23 1. Complaintant objects to any request, definition or instruction that imposes obligations
24 beyond those specified by applicable law, including the Oregon Rules of Civil Procedure
25 and the Oregon Public Utility Commission's administrative rules.
26 2. Complaintant objects to each and every request to the extent that it calls for
Page 1- RESPONSE TO REQUEST FOR ADMISSIONS KINDLEY LAW P.C. Attorney at Law POBoxS69 West Linn, Oregon 97068 Telephone (503) 206-IOIO•E·mail [email protected] DELGADO EXHIBIT 8 Page 44 of 46
1 Request for Admission No. 6: Please affirm, or deny, that the BPA has informed the
2 Cooperative and representatives of Caithness Shepherds Flat, LLC, that it would allow the loads
3 of Shepherds Flat South and Shepherds Flat Central to be aggregated for purposes of determining
4 a single aggregated demand charge, if the Cooperative were to provide station service to the
5 loads of such entities.
6 Response: Complaintant objects to this request because it is vague and ambiguous. The
7 Complaintant admits an employee of BP A represented to the Cooperative that BP A would not
8 allow the loads of the specified wind projects to be aggregated for purposes of determining a
9 single aggregated demand charge, if the Cooperative were to provide station service to the load
10 of such entities.
11
12 DATED this 26th day of November, 2013.
13 KINDLEY LAW PC
14 By Is/ Rqymond S. Kindley RAYMOND S. KINDLEY, OSB 964910 15 Email: [email protected] Tel: (503) 206-1010 16 Attorney for Columbia Basin Electric Cooperative, Inc. 17
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Page 4- RESPONSE TO REQUEST FOR ADMISSIONS · KINDLEY LAW P.C. Attorney at Law POBoxS69 West Linn, Oregon 97068 Telephone (503) 206-IOIO.E-mail kindleylaw@comcasLnet DELGADO EXHIBIT 8 Page 45 of 46
NDIEYLAWPC
RAYMOND S. KlNDLLY Aurvlll TLD IN ORUrON AND WASIIINGI ON
October 1, 2014
VIA ELECTRONIC AND U.S. MAIL
Mr. John Cameron Davis, Wright, Tremaine, LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, OR 97201-3610
RE: OR PUC Docket UM 1670 Supplemental Responses to Caithness Shepherds Flat, LLC First Set of Data Requests
Please find enclosed the supplemental information for Columbia Basin Electric Cooperative's Responses to Caithness Shepherds Flat, LLC First Set of Data Requests to Columbia Basin Electric Cooperative. The information is the map that is responsive to Caithness Shepherds Flat, LLC Data Request 1.a.
If you have any questions, please contact me.
Sincerely ~s Raymond S. Kindley
Kif\DLEY l ,\ \V, PC PO Box .lti9 • \VLST LL\:\. < lH CJ70ti8 «~ (.>o:l) ~Oii-lOJo kindkyla\r DELGADO EXHIBIT 8 PAGE 46 SUBMITTED UNDER SEAL DELGADO EXHIBIT 9 Page 1 of 59 BEFORE THE ENERGY FACILITY SITING COUNCIL OF THE STATE OF OREGON ) In the Matter of the Request for Amendment # 1 of ) FINAL ORDER ON the Site Certificate for Shepherds Flat South ) AMENDMENT#! ______) Oregon Energy Facility Siting Council March 12, 2010 SHEPHERDS FLAT SOUTH: FINAL ORDER ON AMENDMENT #1 TABLE OF CONTENTS I. INTRODUCTION .•••...... ••.•....•.•••.•.•.....•...... ••.....••.....•..•.••...... ••...... •.•.•.•...... •....•..•.•.....••...... ••.•..•...•••.•.... l II. PROCEDURAL HISTORY AND AMENDMENT PROCESS :.•.••...•..•.•...•.••••.•.....••••....•.•..•...... •••...... •.•••... ! III. DESCRIPTION OF THE PROPOSED AMENDMENT ••.•.....•••.....•.•.•.•••..••...... •.••...... •...... •••...... •••...... ••• 3 I. AMENDMENT PROCEDURE ...... •...... ••...... •...... •...... •...... •...... 4 2. THE CERTIFICATE HOLDER'S PROPOSED AMENDMENTS TO THE SITE CERTIFICATE ...... •.• .4 3. DESCRIPTION OF THE FACILITIES AUTHORIZED BY AMENDMENT# I ...... 5 Turbines ...... 5 Power Collection System ...... 5 Substation and Interconnection ...... 5 Control System ...... 6 Access Roads ...... 6 Construction Disturbance Areas ...... 6 Site and Site Boundary ...... 6 IV. THE COUNCIL'S SITING STANDARDS: FINDINGS AND CONCLUSIONS ...... 7 I. GENERAL STANDARD OF REVIEW ...... 7 2. STANDARDS ABOUT THE APPLICANTS ...... 8 (a) Organizational Expertise ...... & (b) Retirement and Financial Assurance ...... 9 3. STANDARDS ABOUT THE IMPACTS OF CONSTRUCTION AND OPERATION ...... I3 (a) Land Use ...... I3 (b) Soil Protection ...... IS (c) Protected Areas ...... 20 (d) Scenic Resources ...... 22 (e) Recreation ...... 23 (f) Public Health and Safety Standards for Wind Energy.Facilities ...... 24 (g) Siting Standards for Wind Energy Facilities ...... 25 (h) Siting Standards for Transmission Lines ...... 26 4. STANDARDS TO PROTECT WILDLIFE ...... 27 (a) Threatened and Endangered Species ...... 27 (b) Fish and Wildlife Habitat ...... 30 5. STANDARDS NOT APPLICABLE TO SITE CERTIFICATE ELIGIBILITY ....•.....•...... •...... 33 (a) Structural Standard ...... 34 (b) Historic, Cultural and Archaeological Resources ...... 3 5 (c) Public Services ...... - ...... 36 (d) Waste Minimization ...... 36 V. OTHER APPLICABLE REGULATORY REQUIREMENTS: FINDINGS AND CONCLUSIONS ...... 37 I. REQUIREMENTS UNDER COUNCIL JURISDICTION ...... 3 7 (a) Noise Control Regulations ...... ;...... 37 (b) Removal-Fill Law ...... 4I (c) Water Rights ...... 43 (d) Public Health and Safety ...... 44 A. Fire Protection ...... 45 B. Magnetic Fields ...... 45 C. Coordination with the PUC ...... 45 D. Boardman Military Operating Area ...... 45 2. REQUIREMENTS THAT ARE NOT UNDER COUNCIL JURISDICTION ...... 46 (a) Federally-Delegated Programs ...... 46 SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I -March I2, 20IO - i- DELGADO EXHIBIT 9 Page 3 of 59 (b) Requirements That Do Not Relate to Siting ...... 46 VI. GENERAL APPLICATION OF CONDITIONS ...... 46 VII. GENERAL CONCLUSION ...... 47 I. THE DEPARTMENT'S RECOMMENDED REVISIONS ...... 4 7 VIII. ORDER ...... '...... 55 Attachments ...... :...... 55 LIST OF TABLES Table 1: Cost Estimate for Facility Site Restoration (1 81 Quarter 2010 Dollars) ...... 11 Table 2: Area Occupied by the Facility ...... 16 Table 3: Typical Layout Habitat Impacts ...... 30 Table 4: Maximum Habitat Impacts ...... 31 LIST OF ABBREVIATIONS BPA Bonneville Power Administration Certificate Holder Horseshoe Bend Wind LLC Council Energy Facility Siting Council Department Oregon Department of Energy DEQ Oregon Department of Environmental Quality DSL Oregon Department of State Lands GCZO Gilliam County Zoning Ordinance MCZO Morrow County Zoning Ordinance MW megawatt or megawatts ODFW Oregon Department of Fish and Wildlife SCAD A Supervisory, Control and Data Acquisition (the control system for the energy facility) SFC Shepherds Flat Central SFN Shepherds Flat North SFS Shepherds Flat South SFWF Shepherds Flat Wind Farm USFWS U.S. Fish and Wildlife Service WMMP Wildlife Monitoring and Mitigation Plan SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I -March 12, 2010 - ii - DELGADO EXHIBIT 9 Page 4 of 59 SHEPHERDS FLAT SOUTH: FINAL ORDER ON AMENDMENT #1 I. INTRODUCTION The Oregon Energy Facility Siting Council (Council) issues this order in accordance 2 with ORS 469.405 and OAR 345-027-0070. This order addresses a request by the certificate 3 holder, Horseshoe Bend Wind LLC for amendment ofthe site certificate for Shepherds Flat 4 South (SFS). 5 The Council issued a site certificate for SFS in September 2009. The site certificate 6 authorized construction and operation of up to 120 wind turbines and related facility 7 components. The faciiity would have a peak generating capacity of up to 360 megawatts. The 8 facility site is entirely on private lands located in Morrow County and Gilliam County south 9 oflnterstate Highway 84 and east of Arlington, Oregon, between State Highways 19 and 74. 10 The certificate holder has not begun construction of the facility. 11 The definitions in ORS 469.300 and OAR 345-001-0010 apply to terms used in this 12 order. II. PROCEDURAL HISTORY AND AMENDMENT PROCESS 13 On November 5, 2009, the certificate holder submitted a "Request to Amend the Site 14 Certificate for Shepherds Flat South" (Request for Amendment #1). On November 12, 2009, 15 the certificate holder sent copies of the amendment request to a list of reviewing agencies 16 provided by the Oregon Department of Energy (Department) with a memorandum from the 17 Department requesting agency comments by December 11,2009. On November 17, the 18 Department sent notice of the amendment request to all persons on the Council's mailing list, 19 to the special list established for the facility and to an updated list of property owners supplied 20 by the certificate holder, requesting public comments by December 11, 2009. 21 By letter dated November 18, the Department notified the certificate holder that the 22 proposed order would be issued no later than January 15, 2010. 23 In response to the public and agency notices of the amendment request, the 24 Department received written comments from the following reviewing agencies and members 25 of the public: 26 • Reviewing Agencies 27 Joe Misek, Oregon Department of Forestry 28 Sarah Kelly, Oregon Department of State Lands 29 Jerry Sauter, Oregon Water Resources Department 30 Rose Owens, Oregon Department ofFish and Wildlife 31 Todd Hesse, Oregon Department of Environmental Quality 32 • Public Comments 33 Johnson Meninick, Confederated Tribes and Bands ofthe Yakama Nation 34 Marisa Meyer I Gary Miller, U.S. Fish and Wildlife Service 35 Leslie Nelson, The Nature Conservancy SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I -March I2, 20IO - I - DELGADO EXHIBIT 9 Page 5 of 59 The Department considered all of the comments in preparing the proposed order. A 2 summary of all comments received and the Department's responses are included in 3 Attachment D, incorporated herein by this reference. 4 By letter dated January 13, 2010, the Department notified the certificate holder that 5 additional time would be needed to prepare the proposed order and, in accordance with OAR 6 345-027-0070(4), explained the circumstances justifying the delay. The Department stated 7 that the proposed order would be issued by February 5. 8 The Department analyzed the Request for Amendment #1 for compliance with all 9 applicable Council standards. The Department's recommended findings and conclusions were 10 presented in the proposed order. The Department recommended that the Council approve the 11 amendment request, subject to revisions of the site certificate discussed below at page 4 7. 12 After issuing the Proposed Order on February 4, 2010, the Department issued a public 13 notice as required under OAR 345-027-0070(5). The Department mailed the notice to all 14 persons on the Council's general mailing list and to all persons on the SFS special list, 15 property owner list and reviewing agency list. In addition, the Department posted the notice 16 on the Department's Internet website. The notice invited public comments and gave a 17 deadline ofMarch 8, 2010, for comments or contested case requests. The Department 18 received the following comments by the deadline of March 8: 19 • LetaNeiderheiser, Oregon Historic Trails Advisory Council, requested that 20 certain restrictions for the avoidance of impacts on the Oregon Trail be 21 maintained for the new proposed boundaries of the "Shepherds Flat Wind 22 Farm."1 The Department responded to the comment by email, noting that the 23 protections are incorporated in Condition 46 of the SFS site certificate and 2 24 would continue to apply to the facility if the amendment were approved. 25 • Andre Meyer expressed concern about turbine noise impacts and the potential 26 negative impact on the value of his property. He requested that "Caithness be 27 required to pay a more fair monetary 'value' for the noise easement prior to the 3 28 'Request for Amendment' being granted." Condition 97 of the site certificate 29 requires the certificate holder to demonstrate compliance with the noise control 30 regulations in OAR 340-035-0035(1)(b)(B) based on the final design 31 configuration of the facility. The certificate holder may or may not need a 32 noise easement to demonstrate compliance with respect to the Meyer property. 33 If the certificate holder needs a noise easement, obtaining the easement is a 34 matter of private negotiation between the certificate holder and the landowner. 35 The Council is not a party to the negotiation and has no authority to impose 36 payment terms for a noise easement. The Department provided this 4 37 information in response to the comment. 38 At a public meeting in Hood River, Oregon, on March 12, 2010, the Council 39 considered the Department's recommendations and voted to approve the amendment request. 1 Letter from Leta Neiderheiser, Chair, Oregon Historic Trails Advisory Council, February 27, 2010. 2 Email from John White, Oregon Department ofEnergy, March 8, 2010. The condition also applies to Shepherds Flat Central. 3 Email from Andre Meyer, Kalex Farms, March 8, 2010. 4 Email from John White, Oregon Department ofEnergy, March 9, 2010. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 2- DELGADO EXHIBIT 9 Page 6 of 59 III. DESCRIPTION OF THE PROPOSED AMENDMENT The amendment request describes an expansion of the site boundary to accommodate 2 an alternative route for a 230-kV transmission line to connect the facility to the regional 3 transmission system operated by the Bonneville Power Administration (BPA). The alternative 4 route would terminate at the same point of interconnection as described in the site certificate: 5 a BPA substation currently under construction next to BPA's Slatt Switching Station. The 6 alternative route for the transmission line would run from the SFS substation north to the 7 Shepherds Flat Central (SFC) substation and then west to the BPA substation. The certificate 8 holder proposes to construct the transmission line within either the previously-approved 9 corridor or the proposed alternative corridor. 10 Companion amendment requests were submitted to the Council by North Hurlburt 11 Wind LLC for Shepherds Flat North (SFN) and by South Hurlburt Wind LLC for SFC. The 12 230-kV interconnection lines for SFN, SFC and SFS would be jointly owned by the certificate 13 holders for the three facilities, and the power from the three facilities would be carried on the 14 same lines. Contracts among the three certificate holders or with a third party would address 15 transmission line maintenance. All three facilities would use the same transmission line 16 corridor. Use of the alternative route would eliminate the need for the interconnection line to 17 cross an existing high-voltage power line and a County road within the SFN site. 5 18 The amendment would remove approximately 1,123 acres from the facility site. 19 These 1, 123 acres would be added to the SFC site to accommodate new turbine locations in 20 SFC.6 In addition, approximately 1,290 acres ofland within the previously-approved SFS site 21 would be added to the SFC site but would not be removed from SFS. These 1,290 acres 22 would be retained in SFS for a transmission corridor (no SFS turbines would be located 7 23 within the area). 24 . Approximately 785 acres within the previously-approved SFC site would be added to 25 the SFS site as part of the alternate transmission corridor for SFS. In addition, the amendment 26 would add new lands (lands lying outside the previously-approved SFS or SFC site · 8 27 boundaries) to the facility site totaling approximately 4,855 acres. This expansion of the 28 facility site would allow the certificate holder to reconfigure the transmission line and turbine 29 layout. The new lands include approximately 1,030 acres that are also proposed to be added to 9 30 SFC under a companion amendment request. This land would be used as a 230-kV . 31 transmission line corridor for SFS, adjacent to the previously-approved transmission corridor, 10 32 so that the line can be reconfigured to reduce the impact on a cultivated field. 5 The areas proposed to be removed from the SFS site are shown in the Request for Amendment #1, Section V, Map 1. 6 A companion amendment request is being submitted to the Council by the SFC certificate holder. 7 The shared 1 ,290-acre area lies between Fairview Lane and Cecil Road and is shown as part of the shaded area identified as "Transmission Corridor Option A" in the Request for Amendment #1, Section V, Map 2. 8 Most of this land was proposed to be included in the Saddle Butte Wind Park, as described in the Notice of Intent submitted by Saddle Butte Wind LLC in August 2009. In addition, the new lands include a segment of the alternate transmission line corridor between the previously-approved SFC site boundary and the BP A Slatt substation (approximately 8.8 acres) and a transmission corridor crossing Eightmile Canyon (approximately 16.2 acres). 9 Email from Patricia Pilz, January 21, 2010. 10 Request for Amendment #1, Section I, p. 2). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 3- DELGADO EXHIBIT 9 Page 7 of 59 1 The amendment would reduce the maximum number of turbines at the facility to 116 2 and would reduce the facility's maximum peak generating capacity to 290 MW. 3 The Request for Amendment # 1 included a request for a general exception to 4 Condition 40(d) where the adjacent land (outside ofthe certificate holder's lease area) is 5 subject to a separate wind development lease and the wind leaseholders on both parcels have 6 entered into a setback agreement acceptable to the Department. The certificate holder 11 7 withdrew this exception request. 1. · Amendment Procedure 8 Under OAR 345-027-0050, a site certificate amendment is needed because the 9 certificate holder proposes to design, construct or operate SFS in a manner different from the 10 description in the current site certificate. In particular, the certificate holder proposes to 11 expand the site boundary, which could result in significant adverse impacts that the Council 12 has not previously addressed and in the need to revise the conditions ofthe site certificate. 13 The Department and the Council must follow the procedures of OAR 345-027-0070 in 14 reviewing the amendment request. In making a decision on this amendment request, the 15 Council applies the "applicable substantive criteria" (defined in OAR 345-022-0030) that 16 were in effect on the date the certificate holder submitted the request for amendment. The 17 Council applies all other State statutes, administrative rules and local government ordinances 18 that are in effect on the date the Council makes its decision. For an amendment that would 19 change the site boundary, the Council must consider whether the facility complies with all 20 Council standards with respect to the area added to the site by the amendment. For any 21 amendment, the Council must consider whether the amount of the bond or letter of credit 22 required under OAR 345-022-0050 is adequate. We address compliance with these 23 requirements in Sections IV and V. 2. The Certificate Holder's Proposed Amendments to the Site Certificate 24 The certificate holder described the proposed changes to the facility in Section III of 25 the amendment request. The amendment would reduce the maximum generating capacity of 26 the facility to 290 MW and would reduce the maximum number of wind turbines to 116. The 27 amendment would change the facility description and location by enlarging the facility site to 28 increase the micrositing area for wind turbines and other components and to allow the option 29 of constructing the 230-kV interconnection line in an alternative corridor. The amendment 30 would remove other land from the facility site. 31 In Section IV of the amendment request, the certificate holder proposed specific 12 32 changes to the site certificate. The Department recommended that the Council approve the 33 substance of the site certificate amendments proposed by the certificate holder and other 34 modifications consistent with the amendment request. The Department's recommended site 35 certificate revisions are discussed below at page 4 7. The Wildlife Monitoring and Mitigation 36 Plan is incorporated in Condition 83 of the site certificate. The Department's recommended 37 modifications of the Wildlife Monitoring and Mitigation Plan are addressed in Revision 12 38 and in Attachment A. The Habitat Mitigation Plan is incorporated in Condition 85 of the site 11 Email from Patricia Pilz, January 1, 2010. 12 Request for Amendment #1, Section IV, following p. 3. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1 -March 12, 2010 - 4- DELGADO EXHIBIT 9 Page 8 of 59 certificate. The Department's recommended modifications ofthe Habitat Mitigation Plan are 2 addressed in Revision 13 and in Attachment C. 3. Description of the Facilities Authorized by Amendment #1 3 The Final Order on Amendment#1 for the Shepherds Flat Wind Farm (September 11, 4 2009) - hereinafter referred to as Final Order on Amendment #1 (SFWF) - describes SFS as 5 approved before this amendment. If the Council approves Amendment # 1, the facility 6 description would be modified as described below. 7 Turbines 8 The Council previously approved construction of up to 120 turbines at SFS. The 9 amendment would reduce the number of turbines to not more than 116. The certificate holder 13 1 o has selected a 2.5-MW turbine for the facility. The combined peak generating capacity of 11 the facility would not exceed 290 MW. 12 Power Collection System 13 Approximately 61 miles of34.5-kV electric collector cables would connect the 14 turbines to a facility substation.14 Most ofthe collector system would be installed 15 underground, but segments ofthe collector system could be located aboveground. The 16 certificate holder has determined that collector lines would not be understrung on the 230-kV 15 17 transmission line structures. The maximum length of double-circuit aboveground segments 16 18 would be 3.2 miles (6.4 miles of3-conductor lines). There would be no single-circuit 19 segments aboveground. Up to 20 surface junction boxes would be installed to provide service 17 20 access to the underground collector lines. 21 Substation and Interconnection 22 A facility substation would be constructed within the SFS site boundary. Power from 23 the collector system would be stepped-up to 230 kV at the substation. An aboveground 230- 24 kV transmission line would connect the SFS facility to the regional transmission grid through 25 the Bonneville Power Administration (BPA) Slatt Switching Station located west ofthe main 26 project area. The previously-approved transmission line route (described in the amendment 27 request as "Option A") would require a transmission line approximately 17.4 miles long that 28 would run from the SFS substation north to the SFN substation and then west to the BPA 18 29 substation. The proposed alternative transmission line route ("Option B") would run from 30 the SFS substation north to the SFC substation and then west to the BPA substation. Under 31 Option B, the transmission line would be approximately 14.5 miles in length. The amendment 19 32 request includes a map showing the Option A and Option B transmission line routes. The 33 certificate holder would be authorized to use either the previously-approved interconnection 34 line corridor or the alternative corridor. Under either option, the transmission route would 13 Request for Amendment # 1, Section I, p. 1. 14 Email from Patricia Pilz, January 12, 2010. 15 Email from Patricia Pilz, December 16, 2009. 16 Table of typical and maximum components (email from Carol Weisskopf, December 22, 2009). 17 Email from Carol Weisskopf, December 22,2009. 18 Length of transmission line based on typical layout (Request for Amendment #1, Section III, p. 1). 19 Request for Amendment #1, Section V, Map 3. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 5 - DELGADO EXHIBIT 9 Page 9 of 59 overlap the SFC and SFN sites in a shared corridor. The 230-kV transmission line would be 2 supported on steel monopole structures. 3 Control System 4 The Supervisory, Control and Data Acquisition (SCADA) system is a fiber optic 5 communications network that follows the same segment routes as the collector system. Where 6 underground, communications lines would be placed in the same trenches as the collector 7 lines, and aboveground communications lines would run on the same power poles as the 8 collector lines. The overall length of the SCADA system is the same as the overall length of 9 the collector system, described above. 10 Access Roads 11 The amendment would decrease the overall length of new roads to 27.5 miles (from 12 the previously-approved maximum of 31.5 miles ).2° In addition, approximately 3.1 miles (but 13 not more than 3.6 miles) of existing ranch roads would be improved. In total, the combined 14 length of access roads would not exceed 31.1 miles, including both new roads and improved 15 existing roads. The finished roads would be approximately 16 feet wide. The new roads and 16 · the improved existing roads would have a compacted base of native soil and a graveled 1 17 surface to a depth of four to ten inches? 18 Construction Disturbance Areas 19 During facility construction, there would be approximately 334 acres of temporary 20 disturbance, based on the typical layout (an increase of up to 106 acres compared to the 22 21 previously-approved facility). The certificate holder's estimate of the area of construction 22 disturbance increased based on discussions with the construction contractor regarding final 23 23 design details, which occurred after the Request for Amendment #1 was submitted. The 24 reasons for the increase are described herein at page 18. 25 Temporary disturbance includes approximately 25.4 miles of new access roads and 3.2 26 miles of existing ranch roads that would be temporarily widened up to 71 feet wide to 27 accommodate crane travel. Areas of temporary construction disturbance also include a 7-acre 28 temporary staging and storage area, approximately 72 acres of temporary construction area at 29 turbine sites, approximately 57 acres of temporary disturbance for trenching and 30 approximately 34.5 acres of temporary disturbance associated with construction of 31 aboveground collector and 230-kV transmission lines. 32 Site and Site Boundary 33 The Final Order on Amendment # 1 (SFWF) describes the SFS site and site boundary 34 as previously approved. Ifthe Council approves Amendment #1, the area within the site 35 boundary would increase by approximately 4,517 acres to a total of approximately 15,928 20 Table oftypical and maximum components (email from Carol Weisskopf, December 22, 2009). 21 Email from Patricia Pilz, January 12, 2010. 22 Temporary project construction footprint, typical layout (email from Carol Weisskopf, December 22, 2009). There could be up to 409 acres oftemporary disturbance under maxim urn habitat disturbance layout, as shown in Table 4 herein. 23 Email from Carol Weisskopf, December 22, 2009. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 6- DELGADO EXHIBIT 9 Page 10 of 59 acres?4 The amendment request includes a map of the expanded site boundary, showing the 25 2 areas removed and the areas added to the site by the proposed amendment. IV. THE COUNCIL'S SITING STANDARDS: FINDINGS AND CONCLUSIONS 3 The Council must decide whether the amendment complies with the facility siting 4 standards adopted by the Council. In addition, the Council must impose conditions for the 5 protection of the public health and safety, conditions for the time of commencement and 6 completion of construction and conditions to ensure compliance with the standards, statutes 7 and rules addressed in the project order. ORS 469.401(2). 8 The Council is not authorized to determine compliance with regulatory programs that 9 have been delegated to another state agency by the federal government. ORS 469.503(3). 10 Nevertheless, the Council may consider these programs in the context of its own standards to 11 ensure public health and safety, resource efficiency and protection of the environment. 12 The Council has no jurisdiction over design or operational issues that do not relate to 13 siting, such as matters relating to employee health and safety, building code compliance, wage 14 and hour or other labor regulations, or local government fees and charges. ORS 469.401(4). 15 In making its decision on an amendment of a site certificate, the Council applies the 16 applicable State statutes, administrative rules and local government ordinances that are in 17 effect on the date the Council makes its decision, except when applying the Land Use 18 Standard. In making findings on the Land Use Standard, the Council applies the applicable 19 substantive criteria in effect on the date the certificate holder submitted the request for 20 amendment. OAR 345-027-0070(10). 1. General Standard of Review 21 OAR 345-022-0000 22 (1) To issue a site certificate for a proposedfacility or to amend a site certificate, 23 the Council shall determine that the preponderance ofevidence on the record 24 supports the following conclusions: 25 (a) The facility complies with the requirements ofthe Oregon Energy Facility 26 Siting statutes, ORS 469.300 to ORS 469.570 and 469.590 to 469.619, and the 27 standards adopted by the Council pursuant to ORS 469.501 or the overall public 28 benefits ofthe facility outweigh the damage to the resources protected by the . 29 standards the facility does not meet as described in section (2); 30 (b) Except as provided in OAR 345-022-0030 for land use compliance and 31 except for those statutes and rules for which the decision on compliance has been 32 delegated by the federal government to a state agency other than the Council, the 33 facility complies with all other Oregon statutes and administrative rules identified 34 in the project order, as amended, as applicable to the issuance ofa site certificate 35 for the proposedfacility. Ifthe Council finds that applicable Oregon statutes and 36 rules, other than those involving federally delegated programs, would impose 24 Approximately 1,123 acres would be removed from the site boundary, and approximately 5,640 acres would be added, for a net increase of 4,517 acres. 25 Request for Amendment #I, Section V, Map 1. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 -7- DELGADO EXHIBIT 9 Page 11 of 59 conflicting requirements, the Council shall resolve the conflict consistent with the 2 public interest. In resolving the conflict, the Council cannot waive any applicable 3 state statute. 4 * * * 5 We address the requirements of OAR 345-022-0000 in the findings of fact, reasoning, 6 conditions, and conclusions oflaw discussed in the sections that follow. Upon consideration 7 of all of the evidence in the record, we state our general conclusion regarding the amendment 8 request in Section VII. 2. Standards about the Applicants (a) Organizational Expertise 9 OAR 345-022-0010 10 (1) To issue a site certificate, the Council must find that the applicant has the 11 organizational expertise to construct, operate and retire the proposedfacility in 12 compliance with Council standards and conditions ofthe site certificate. To 13 conclude that the applicant has this expertise, the Council must find that the 14 applicant has demonstrated the ability to design, construct and operate the 15 proposedfacility in compliance with site certificate conditions and in a manner 16 that protects public health and safety and has demonstrated the ability to restore 17 the site to a useful, non-hazardous condition. The Council may consider the 18 applicant's experience, the applicant's access to technical expertise and the 19 applicant's past performance in constructing, operating and retiring other 20 facilities, including, but not limited to, the number and severity ofregulatory 21 citations issued to the applicant. 22 (2) The Council may base its findings under section (I) on a rebuttable 23 presumption that an applicant has organizational, managerial and technical 24 expertise, if the applicant has an ISO 9000 or ISO 14000 certified program and 25 proposes to design, construct and operate the facility according to that program. 26 (3) Ifthe applicant does not itselfobtain a state or local government permit or 27 approval for which the Council would ordinarily determine compliance but 28 instead relies on a permit or approval issued to a third party, the Council, to issue 29 a site certificate, must find that the third party has, or has a reasonable likelihood 30 ofobtaining, the necessary permit or approval, and that the applicant has, or has 31 a reasonable likelihood ofentering into, a contractual or other arrangement with 32 the third party for access to the resource or service secured by that permit or 33 approval. 34 ( 4) If the applicant relies on a permit or approval issued to a third party and the 35 third party does not have the necessary permit or approval at the time the Council 36 issues the site certificate, the Council may issue the site certificate subject to the 37 condition that the certificate holder shall not commence construction or operation 38 as appropriate until the third party has obtained the necessary permit or approval 39 and the applicant has a contract or other arrangement for access to the resource 40 or service secured by that permit or approval. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 8- DELGADO EXHIBIT 9 Page 12 of 59 Findings of Fact In the Final Order on Amendment #I (SFWF), the Council found that the certificate 2 holder, as a subsidiary of Caithness Energy, LLC, has the organizational expertise to 3 construct, operate and retire the ~roposed facility in compliimce with Council standards and 6 4 conditions of the site certificate. The Council found that the certificate holder may 5 optionally obtain concrete, water and fuel from "service areas" that would be permitted, 6 constructed and operated by third-party contractors. In choosing that option, the certificate 7 holder would rely on third-party permits. The Council found that the third-party contractors 8 have a reasonable likelihood of getting the necessary permits and that the certificate holder 9 has a reasonable likelihood of entering into a contractual or other arrangement with these 10 contractors for access to concrete, water and fuel necessary for construction of SFS.27 11 The proposed changes to the SFS site boundary would not affect the Council's 12 previous findings. The Council finds that there have been no changes of circumstances or 13 underlying facts that would affect the Council's previous findings under this standard. Conclusions ofLaw 14 Based on the findings discussed above, the Council concludes that certificate holder 15 would meet the Council's Organizational Expertise Standard if Amendment #1 were 16 approved. (b) Retirement and Financial Assurance 17 OAR 345-022-0050 18 To issue a site certificate, the Council must find that: 19 (I) The site, taking into account mitigation, can be restored adequately to a useful, 20 non-hazardous condition following permanent cessation ofconstruction or 21 operation ofthe facility. 22 (2) The applicant has a reasonable likelihood ofobtaining a bond or letter of 23 credit in a form and amount satisfactory to the Council to restore the site to a 24 useful, non-hazardous condition. Findings of Fact 25 In the Final Order on Amendment #I (SFWF), the Council found that the SFS site 26 could be restored adequately to a useful, non-hazardous condition following permanent 28 27 cessation of construction or operation of the facility. The Council found that the cost of site 29 28 restoration would not exceed $8.887 million in 3rd Quarter 2009 dollars. The Council found 29 that the certificate holder, Horseshoe Bend Wind LLC, had demonstrated a reasonable 30 likelihood of obtaining a bond or letter of credit for that amount. 31 As described herein, the proposed amendment would enlarge the facility site and 32 would reduce the maximum number of wind turbines. It would reduce the maximum 26 Final Order on Amendment #1 (SFWF), p. 15. 27 Final Order on Amendment #1 (SFWF), p. 15-16. 28 Final Order Amendment #1 (SFWF), p. 16. 29 Final Order Amendment # 1 (SFWF), p. 23. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1 -March 12, 2010 -9- DELGADO EXHIBIT 9 Page 13 of 59 t combined length of aboveground segments ofthe collector and SCADA system and would 2 reduce the number ofjunction boxes. It would decrease the maximum combined length of 3 new access roads but would increase the area of temporary disturbance during construction. 30 4 The amendment would reduce the maximum length of the 230-kV transmission line. 5 For this amendment request, the Department calculated a revised cost estimate for SFS 6 following the estimating procedure outlined in its draft "Facility Retirement Cost Estimating 7 Guide." The estimate assumed a facility configuration that would result in the highest site 8 restoration cost consistent with the maximum design flexibility requested by the certificate 9 holder. The assumptions underlying the revised SFS cost estimate are as follows: 10 • 116 GE 2.5-MW turbines, each weighing 302 U.S. tons (including the weight 31 11 of steel in the towers, nacelles, internal ladders and platforms). 12 Turbine foundations containing 66 cubic yards of concrete above three feet • 32 13 below grade. 33 14 • 116 step-up transformers located within the turbine towers. 15 • 89 turbine tumouts.34 16 • Two meteorological towers, one field workshop, one substation.35 17 3.2 miles of double-circuit 34.5-kV transmission segments (6.4 miles ofline) • 36 18 and SCADA lines mounted on up to 58 poles. 19 • 20 miles of single-circuit 230-kV transmission line mounted on up to 152 steel 20 monopoles.37 38 21 • 20 junction boxes. 22 • 27.5 miles of access roads.39 23 • Removal of facility components would disturb additional area around the 24 component footprints. The estimated areas affected and the unit costs to 30 The full length of the 230-kV line and all support structures needed for SFS are included in the estimate, although the same transmission route would be used for SFN and SFC and some support structures would be shared. 31 Table of typical and maximum components (email from Carol Weisskopf, December 22, 2009) and wind turbine specifications, Request for Amendment# 1 for the Shepherds Flat Wind Farm, Section III, p. 14. 32 Wind turbine specifications, Request for Amendment #1 for the Shepherds Flat Wind Farm, Section III, p. 14. 33 Email from Patricia Pilz, January 7, 2010. The unit cost for transformer removal is based on electrical disassembly costs alone. 34 Turbines at ends of roads have no turnout, based on permanent facilities footprint (email from Carol W eisskopf, December 22, 2009). 35 Permanent facilities footprint (email from Carol Weisskopf, December 22, 2009). 36 Table of typical and maximum components (email from Carol Weisskopf, December 22, 2009). 37 Table oftypical and maximum components (email from Carol Weisskopf, December 22, 2009). The unit cost for the 230-kV transmission line has decreased from the cost shown in the Final Order on Amendment# 1 (SFWF) due to a change from double-circuit to single-circuit and an increased distance between transmission poles (based on changes to footprint calculations, email from Carol Weisskopf, December 22, 2009). 38 Email from Carol Weisskopf, December 22,2009. 39 Table of typical and maximum components (email from Carol Weisskopf, December 22, 2009). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 10- DELGADO EXHIBIT 9 Page 14 of 59 restore these areas, based on the severity of disturbance expected, are shown 40 2 in the table below. 3 Using these highest-cost assumptions, the Department estimated the site restoration 4 cost for SFS as shown in Table 1.41 Table 1: Cost Estimate for Facility Site Restoration (1'' Quarter 2010 Dollars) Quantity Unit Cost Extension Turbines Disconnect electrical and ready for disassembly (per tower) 116 $1,061 $123,067 Remove turbine hubs and blades (per tower) 116 $4,106 $476,296 Remove turbine nacelles and towers (per net ton of steel) 35,032 $76.67 $2,685,903 Remove tower foundations (per cubic yard of concrete) 7656 $38.68 $296,134 Remove transformers (per transformer) 116 $2,407 $279,212 Restore turbine turnouts (per turnout) 89 $97 $8,633 Met Towers Dismantle and dispose of met towers (per tower) 2 $9,483 $18,966 Substation and Field WorkshoQ Dismantle and dispose of substation 1 $88,577 $88,577 Dismantle and dispose of field workshop 1 $27,798 $27,798 Transmission Line Remove 230-kV transmission line (per mile) 20 $15,270 $305,400 Remove 34.5-kV transmission line and SCADA (per mile) 6.4 $2,132 $13,645 Remove junction boxes & electrical to 4' below grade (each) 20 $1,416 $28,320 Access Roads Remove roads, grade and seed (per mile) 27.5 $17,460 $480,150 40 The unit cost for restoring areas around access roads assumes that grading and seeding would be needed. The unit cost for areas of temporary transmission line access roads and cross-country crane paths assumes that only seeding would be needed. Restoration area for 34.5-kV and 230-kV transmission line poles includes both the permanent footprint and temporary disturbance areas. Acreages of disturbance shown in the table are based on the table of temporary construction disturbance, worst-case layout (email from Carol Weisskopf, December 22, 2009), except for the acreages for 34.5-kV transmission line support poles and cross-country crane paths, which are based on the table oftypical and maximum components (email from Carol Weisskopf, December 22, 2009). 41 The Facility Retirement Cost Estimating Guide computes the retirement and site restoration cost in terms of mid-2004 dollars. In the Final Order on Amendment #1 (SFWF), the Council adopted unit costs adjusted to reflect preliminary 3rd Quarter 2009 dollars. Table 1 shows unit costs in 3rd Quarter 2009 dollars and an adjustment of the subtotal to 1st Quarter 2010 dollars using a multiplier of 1.0051. The multiplier was generated by dividing the 1st Quarter 2010 Gross Domestic Product Implicit Price Deflator (GDP) of 110.4873 by the 3rd Quarter 2009 GDP of 109.9229. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 11 - DELGADO EXHIBIT 9 Page 15 of 59 Restore Additional Areas Disturbed bl£ Facilitl£ Removal Around turbine pads (per acre) 72.25 $5,988 $432,633 Around turnarounds and turning radii (per acre) 12.24 $5,988 $73,293 Around met towers (per acre) 0.22 $5,988 $1,317 Around substation (per acre) 1.83 $5,988 $10,958 Around 34.5-kV transmission line poles (per acre) 3.34 $2,973 $9,930 Around 230-kV power line poles and pulling disturbance (per acre) 28.74 $2,973 $85,444 Around access roads (per acre) 216.11 $5,988 $1,294,067 Around temporary transmission access and cross-country crane 81.07 $2,973 $241,021 paths (per acre) Laydown and storage areas (per acre) 7.0 $2,973 $20,811 General Costs Permits, mobilization, engineering, overhead, utility disconnects (unit 1 $475,517 $475,517 cost) Subtotal $7,477,101 Subtotal Adjusted to 1st Quarter 2010 Dollars $7,515,235 Performance Bond 1% $75,152 Gross Cost $7,590,387 Administration and Project Management 10% $759,039 Future Developments Contingency 10% $759,039 Total Site Restoration Cost (rounded to nearest $1,000) $9,108,000 1 The Council finds that the SFS site, taking into account mitigation and including the 2 changes proposed by Amendment # 1, can be restored adequately to a useful, non-hazardous 3 condition following permanent cessation of construction or operation of the facility. The 4 Council finds that $9.108 million (1st Quarter 2010 dollars) adjusted annually as described in 5 revised Condition 30 is a conservative estimate of the cost to restore the SFS site to a useful, 6 non-hazardous condition. The Department's estimate is higher than the amount the Council 7 previously found to be a reasonable cost to restore SFS to a useful, non-hazardous condition 8 ($8.887 million in 3rd Quarter 2009 dollars). The increase in the estimated site restoration 9 cost is due primarily to the increase in acres of temporary disturbance. 10 The certificate holder provided a letter from JPMorgan Chase Bank, N.A. (Chase) 11 stating that Chase "would be interested in issuing a letter of credit in the stated amount of up 12 to $9,108,000 for the benefit ofThe Oregon Department ofEnergy by application of 42 13 Horseshoe Bend Wind, LLC." Chase stated that "there is a reasonable likelihood that Chase 14 would be inclined to issue" the letter of credit (LC) if''the reimbursement obligations under 15 the LC would be collateralized and documented in the same manner that Chase has previously 16 issued letters of credit on behalf of other subsidiaries of Caithness Energy." The letter does 17 not constitute a firm commitment by Chase to issue the letter of credit, but it is evidence that 18 the certificate holder could obtain the necessary letter of credit for SFS. The Council finds 19 that the certificate holder has demonstrated a reasonable likelihood of obtaining a bond or 20 letter of credit, satisfactory to the Council, in an amount adequate to restore the SFS site to a 21 useful, non-hazardous condition. 42 Email from Carol Weisskopf, January 29,2010, with attached letter from JPMorgan Chase Bank. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 12- DELGADO EXHIBIT 9 Page 16 of 59 Conclusions of Law Based on the findings stated above, the Council concludes that the certificate holder 2 would meet the Council's Retirement and Financial Assurance Standard if Amendment # 1 3 were approved. 3. Standards about the Impacts of Construction and Operation (a) Land Use 4 OAR 345-022-0030 5 (1) To issue a site certificate, the Council must find that the proposedfacility 6 complies with the statewide planning goals adopted by the Land Conservation and 7 Development Commission. 8 (2) The Council shall find that a proposed facility complies with section (1) if: 9 *** 10 (b) The applicant elects to obtain a Council determination under ORS 11 469.504(1)(b) and the Council determines that: 12 (A) The proposedfacility complies with applicable substantive criteria as 13 described in section (3) and the facility complies with any Land Conservation and 14 Development Commission administrative rules and goals and any land use statutes 15 directly applicable to the facility under ORS 197.646(3); 16 (B) For a proposedfacility that does not comply with one or more ofthe 17 applicable substantive criteria as described in section (3), the facility otherwise 18 complies with the statewide planning goals or an exception to any applicable 19 statewide planning goal is justified under section (4); or 20 (C) For a proposedfacility that the Council decides, under sections (3) or 21 (6), to evaluate against the statewide planning goals, the proposedfacility 22 complies with the applicable statewide planning goals or that an exception to any 23 applicable statewide planning goal is justified under section (4). 24 (3) As used in this rule, the "applicable substantive criteria" are criteria.from the 25 affected local government's acknowledged comprehensive plan and land use 26 ordinances that are required by the statewide planning goals and that are in effect 27 on the date the applicant submits the application. Ifthe special advisory group 28 recommends applicable substantive criteria, as described under OAR 345-021- 29 0050, the Council shall apply them. Ifthe special advisory group does not 30 recommend applicable substantive criteria, the Council shall decide either to make 31 its own determination ofthe applicable substantive criteria and apply them or to 32 evaluate the proposedfacility against the statewide planning goals. 33 (4) The Council may find goal compliance for a proposedfacility that does not 34 otherwise comply with one or more statewide planning goals by taking an 35 exception to the applicable goal. Notwithstanding the requirements ofORS 36 197.732, the statewide planning goal pertaining to the exception process or any 37 rules ofthe Land Conservation and Development Commission pertaining to the SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 13- DELGADO EXHIBIT 9 Page 17 of 59 exception process, the Council may take an exception to a goal if the Council 2 finds: 3 (a) The land subject to the exception is physically developed to the extent that 4 the land is no longer available for uses allowed by the applicable goal; 5 (b) The land subject to the exception is irrevocably committed as described by 6 the rules ofthe Land Conservation and Development Commission to uses not 7 allowed by the applicable goal because existing alijacent uses and other relevant 8 factors make uses allowed by the applicable goal impracticable; or 9 (c) The following standards are met: 10 (A) Reasons justify why the state policy embodied in the applicable goal 11 should not apply; 12 (B) The significant environmental, economic, social and energy 13 consequences anticipated as a result ofthe proposed facility have been identified 14 and adverse impacts will be mitigated in accordance with rules ofthe Council 15 applicable to the siting ofthe proposed facility; and 16 (C) The proposedfacility is compatible with other alijacent uses or will be 17 made compatible through measures designed to reduce adverse impacts. 18 * * * Findings ofFact 19 In acting on this amendment request, the Council applies the applicable substantive 20 criteria in effect on the date the certificate holder submitted the request for amendment. The 21 Planning Directors of Gilliam County and Morrow County have confirmed that the applicable 22 substantive criteria for the evaluation of wind energy facilities in the two counties have not 23 changed between June 15, 2009 (the date the request for Amendment #1 for the SFWF was 24 submitted) and the date the certificate holder submitted the present amendment request for 25 SFS (November 5, 2009).43 Therefore, the local land use criteria that the Council applied in 26 the Final Order on Amendment #1 (SFWF) are applicable to this amendment request. 27 In the Final Order on Amendment #1 (SFWF), the Council found that its previous 44 28 findings with respect to the former Shepherds Flat Wind Farm would apply to SFS. The 29 Council found that SFS would occupy more than 20 acres of land in Gilliam County and more 30 than 20 acres ofland in Morrow County and therefore would not comply with Gilliam County 31 Zoning Ordinance (GCZO) Section 4.020(D)(14) and Morrow County Zoning Ordinance 45 32 (MCZO) Section 3.010(D)(16). The Council's previous land use findings are incorporated 33 herein by this reference. All land within the previously-approved site boundaries of SFS, SFC 46 34 and SFN is zoned Exclusive Farm Use (EFU). 35 When a facility does not comply with all of the applicable substantive criteria in the 36 local jurisdiction, the Council must determine whether the facility otherwise complies with 43 Email from Carla McLane, Morrow County Planning Director, December 1, 2009; email from Susie Anderson, Gilliam County Planning Director, December 2, 2009. 44 Final Order on Amendment #I (SFWF), p. 25. 45 Final Order on Amendment #1 (SFWF), pp. 27-28. 46 Final Order on the Application/or the Shepherds Flat Wind Farm (July 25, 2008), p. 19. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 14- DELGADO EXHIBIT 9 Page 18 of 59 the applicable statewide planning goals or if an exception to any applicable statewide 2 planning goal .is justified. The Council analyzed SFS for compliance with the requirements of 3 ORS 215.283 and implementing regulations, specifically OAR 660-033-0120 and -0130, and 4 the analysis is incorporated herein by this reference.47 5 The Final Order on Amendment #I (SFWF) includes the Department's analysis of 6 compliance with OAR 660-033-0120 and OAR 660-033-0130, as amended January 2, 2009 7 (the new rules), as well as analysis under these regulations in effect before the January 2009 8 amendments (the old rules). As of the date the certificate holder submitted the present 9 amendment request, neither Gilliam County nor Morrow County had incorporated the January 10 2009 changes to OAR 660-033-0120 and OAR 660-033-0130 into the local zoning 11 ordinances. Therefore, the land use analysis must address the old rules and the new rules. 12 Under the old rules, a power generation facility must not occupy more than 12 acres of 48 13 high-value farmland or more than 20 acres of non-high-value farmland. The Council has 14 found that there is no high-value farmland within the previously-approved SFS and SFC site 15 boundaries.49 To the extent that the proposed amendment would add areas to the SFS site that 16 are already included in the previously-approved SFC site boundary, the proposed expansion 17 of the SFS site occupies non-high-value farmland. Approximately 4,855 acres lying outside 18 the previously-approved SFS or SFC site boundarjes (new lands) would be added to SFS by 19 the proposed amendment. 5° In the amendment request, the certificate holder provided a map 20 showing the Land Capability Classifications of all new lands proposed to be added to the SFS 21 site. 51 The map demonstrates that there is no high-value farmland in these areas. 52 22 The area that would be occupied by SFS components is shown in Table 2 below: 47 Final Order on Amendment #I (SFWF), pp. 28-33. 48 The Final Order on Amendment #1 (SFWF) includes the definition of"high-value farmland" and "non-high value farmland" at pages 27 and 29. 49 Final Order on Amendment #I (SFWF), pp. 29-30. 50 All but 25 acres of the new lands were included in the proposed site of the Saddle Butte Wind Park, which lies entirely on EFU land (Notice oflntent, Saddle Butte Wind Park, August 2009, Exhibit J, p. 8). The new lands include a segment of the alternate transmission line corridor between the previously-approved SFC site boundary and the BPA Slatt substation (approximately 8.8 acres) and a transmission corridor crossing Eightmile Canyon (approximately 16.2 acres). These lands are also within the EFU zone. 51 Request for Amendment #I, Section V, Map 6. 52 Based on table of the facility footprint by county (email from Carol Weisskopf, December 23, 2009). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I- March I2, 20IO - I5- DELGADO EXHIBIT 9 Page 19 of 59 Table 2: Area Occupied by the Facility Gilliam Morrow Structure County County Total (acres) (acres) Principal use Turbine towers, including pad areas and turnouts 2.7 2.3 5 Meteorological towers <0.1 0 < 0.1 Field workshop 1.4 0 1.4 34.5-kV collector line structures < 0.1 <0.1 0.1 Access roads 24.8 27.0 51.8 Subtotal 29.0 29.3 58.3 Substation 3.2 0 3.2 230-kV transmission line structures 0.1 <0.1 0.1 Total 32.3 29.3 61.6 Comparing Table 2 above with Table 6 in the Final Order on Amendment #I (SFWF), 2 the proposed amendment would increase the area occupied by SFS components in Gilliam 3 County and reduce the area occupied by SFS components in Morrow County. Overall, the 4 amendment would reduce the total component footprint by approximately 4 acres. 5 Because SFS would occupy more than 20 acres of non-high-value farmland, the 53 6 facility does not comply with OAR 660-033-0130 (old rule). In the Final Order on 7 Amendment #I (SFWF), the Council found that a Goal3 exception was justified for SFN, SFC 8 and SFS under ORS 469.504(2)(c) for the same reasons as discussed in the Final Order on the 54 9 Application for the Shepherds Flat Wind Farm with respect to the SFWF. Those findings 10 are incorporated herein by this reference. The amendment would potentially affect 4,855 acres 11 outside of the area previously approved for SFS or SFC, but the amendment would reduce the 12 total land area occupied by the facility components. The proposed amendment does not 13 change the nature of the land use. The effect of selecting Option A or Option B for the 14 interconnection route would be a difference in location of the transmission line. It would not 15 significantly increase the land use impacts associated with the transmission line or change the 16 nature of those impacts. 55 Likewise, the amendment would reduce the number of turbines, and 17 the reconfiguration of turbine locations, access roads and other components within a larger 18 micrositing area would not significantly increase the impacts ofthe wind energy facility 19 compared to the impacts already considered by the Council in the previous orders mentioned 20 above. The Council finds that a Goal 3 exception is justified for SFS, including the changes 21 requested in this amendment, for the same reasons discussed in the Council's previous orders. 22 Under the new rules, OAR 660-033-0130(37)(a) requires a finding that "reasonable 23 alternatives" to siting a wind power facility on high-value farmland soils have been 24 considered. As discussed above, SFS, including areas added by the proposed amendment, 25 would not be located on high-value farmland soils. OAR 660-033-0130(37)(b) applies to 53 Former OAR 660-033-0130 does not specifY whether or not the 20-acre limit applies to a single county. 54 The reasons justifYing a Goal 3 exception are discussed at pages 55-58 of the Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008). 55 Selection of Option B would reduce the length of the 230-kV transmission line distance (and the area occupied by support structures) between SFS and the BPA Slatt substation compared to Option A (Request for Amendment #1, Section III, p. 1). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 16- DELGADO EXHIBIT 9 Page 20 of 59 "arable" land and requires specific findings regarding "unnecessary negative impacts on 2 agricultural operations," "unnecessary soil erosion or loss that could limit agricultural 3 productivity," ''unnecessary soil compaction that reduces the productivity of soil for crop 4 production" and "unabated introduction or spread of noxious weeds and other undesirable 56 5 weeds species." The SFS components would be located on combination of arable and 7 6 nonarable lands. 5 Accordingly, the criteria in OAR 660-033-0130(37)(b)(A) through (D) 7 apply to SFS. 8 OAR 660-033-0130(37)(b)(A) requires that the proposed wind power facility must not 9 "create unnecessary negative impacts on agricultural operations conducted on the subject 10 property." This requirement is substantially similar to the approval standards the local 11 ordinances of Gilliam County and Morrow County. In the Final Order on the Application for 12 the Shepherds Flat Wind Farm, the Council found that the SFWF complied with GCZO 13 Section 4.020(H), GCZO Section 7.020(Q) and MCZO Section 3.010(D).58 Each of these 14 local ordinances require that a conditional use on EFU land must not "force a significant 15 change in accepted farm or forest practices on surrounding lands devoted to farm or forest 16 use" and must not "significantly increase the cost of accepted farm or forest practices on 17 surrounding lands devoted to farm or forest use." In the Final Order on Amendment #I 18 (SFWF), the Council applied its earlier reasoning and found that the SFC and SFS 19 components located on arable lands in Gilliam County and Morrow County would not result 20 in unnecessary negative impacts on agricultural operations. 59 Those findings are incorporated 21 herein by this reference. 22 OAR 660-033-0130(37)(b)(B) requires that the proposed wind power facility must not 23 "result in unnecessary soil erosion or loss that could limit agricultural productivity." OAR 24 660-033-0130(37)(b)(C) requires that facility construction or maintenance activities must not 25 "result in unnecessary soil compaction that reduces the productivity of soil for crop 26 production." In the Final Order on Amendment #I (SFWF), the Council found that the SFC 27 and SFS components located on arable lands in Gilliam County and Morrow County would 28 not result in unnecessary soil erosion or loss. Potential adverse impacts to soils and measures 29 to avoid or control soil erosion and compaction are addressed by the Council's Soil Protection 30 Standard, discussed below at page 18. Subject to Conditions 11, 36, 73, 75, 76 and 84, the 31 Council finds that SFS, including the changes proposed by Amendment #1, would comply 32 with OAR 660-033-0130(37)(b)(B) and OAR 660-033-0130(37)(b)(C). 33 OAR 660-033-0130(37)(b)(D) requires a finding that construction or maintenance 34 activities would not result in the "unabated introduction or spread of noxious weeds and other· 35 undesirable weeds species." This requirement may be met by submission of a county- 36 approved weed control plan. Condition 38 requires the certificate holder to implement a weed 37 control program that is consistent with the Gilliam County and Morrow County weed control 38 programs. Condition 84 addresses construction impacts to agricultural land and requires the 39 certificate holder to implement the Revegetation Plan, which includes weed control measures 40 recommended by Gilliam County and Morrow County weed control authorities. The Council 56 OAR 660-033-0130(37)(b) defines "arable lands" means "lands that are cultivated or suitable for cultivation, including high-value farmland soils described at ORS 195.300(10)." 57 "Agricultural use by county" (table), Request for Amendment #1, Section IV, p. 3. 58 Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 22,30-32 and 42. 59 Final Order on the Amendment #1 (SFWF), p. 33. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 17- finds that, subject to the site certificate conditions, the construction and operation ofSFS, 2 including components within the expansion areas proposed by Amendment # 1, would not 3 result in unabated introduction or spread of weeds. 4 The Council finds that SFS, with the changes requested in this amendment, would 5 meet the approval criteria contained in the new rules for a wind power generating facility 6 under OAR 660-033-0130. Conclusions ofLaw 7 Based on the findings of fact, reasoning and conditions discussed above, the Council 8 finds that SFS, with the changes proposed by Amendment #1, would comply with all 9 applicable substantive criteria from Gilliam County and Morrow County except GCZO 10 Section 4.020(0)(14) and MCZO Section 3.010(0)(16). Accordingly, the Council must 11 proceed with the land use analysis under ORS 469.504(1)(b)(B). 12 If the old rules apply, the Council finds that SFS does not comply with OAR 660-033- 13 0130(22) because it would occupy more than 20 acres of non-high-value farmland. Therefore, 14 the facility does not comply with the applicable statewide planning goal (Goal 3). The 15 Council finds that an exception to Goal3 is justified under ORS 469.504(2)(c). If the new 16 rules apply, the Council finds that SFS, with the changes proposed by Amendment #1, 17 complies with OAR 660-033-0130(37) and otherwise complies with all applicable statewide 60 18 planning goals. 19 Based on these findings and the site certificate conditions described herein, the 20 Council concludes that SFS would comply with the Land Use Standard if Amendment #1 21 were approved. (b) Soil Protection 22 OAR 345-022-0022 23 To issue a site certificate, the Council must find that the design, construction and 24 operation ofthe facility, taking into account mitigation, are not likely to result in a 25 significant adverse impact to soils including, but not limited to, erosion and 26 chemical factors such as salt deposition from cooling towers, land application of 27 liquid effluent, and chemical spills. Findings ofFact 28 In the Final Order on Amendment #I (SFWF), the Council found that the design, 61 29 construction and operation of SFS would not result in a significant adverse impact to soils. 30 Those findings are incorporated herein by this reference. Amendment # 1 would add 31 approximately 5,640 acres to the site boundary, but approval of the amendment request would 62 32 not result in any soil impacts of a kind that have not been addressed by the Council. 33 A larger area of temporary disturbance could occur during construction under the 34 proposed amendment. In the Final Order on Amendment #I (SFWF), the Council found that 60 If the new rules apply and SFS were found not to comply with OAR 660-033-0130(37), then an exception to Goal 3 would be justified for the reasons discussed herein. 61 Final Order on Amendment #1 (SFWF), p. 34. 62 Approximately 785 acres of the area added to the SFS site lies within the previously-approved SFC site. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1 -March 12,2010 - 18- DELGADO EXHIBIT 9 Page 22 of 59 approximately 226 acres of land could be temporarily disturbed during construction of SFS, 63 2 based on the typicallayout. The certificate holder now estimates that temporary disturbance 64 3 would affect approximately 334 acres under the typicallayout. The increase is primarily due 4 to the certificate holder's ongoing discussions with the construction contractor, the final 5 selection of a turbine type for the project and on-site geotechnical investigations. The 6 certificate holder listed. the following considerations affecting the estimate oftemporary 65 7 disturbance: 8 • The number of foundations requiring compaction is based on core samples 9 taken at the turbine sites. 10 • The temporary disturbance at non-compacted sites has increased due to the 11 necessity of assembling part ofthe hydraulic system on site and then inserting 12 it into the bottom tower sections. This requires the nacelle and tower sections 13 to be present before erection, and just-in-time component delivery is 14 precluded. 15 • The disturbance area around each 230-kV or 34.5-kV transmission line support 16 pole has increased to allow assembly from both sides of the structure while it is 17 lying on the ground. 18 • A temporary access roadway (10 feet wide in the typical case and 16 feet wide 19 for the worst case) runs along the portions of the transmission line that are not 20 adjacent to project or ranch roads. 21 • Trenching disturbance has increased because the collector system would be 22 installed underground, except for one aboveground segment. Where possible, 23 trenches have been located on ranch roads. 24 • The disturbance width has been reduced for roads used for access but not for 25 crane travel. The difference in widths for the typical and worst case analysis is 26 the estimated area needed for stockpiling of topsoil. 27 • Crane paths are required because the County roads are not wide enough to 28 accommodate the crane safely. Where possible, crane paths have been located 29 on ranch roads or above trenching disturbance to reduce the additional 30 footprint. 31 • The 230-kV line will be passing beneath a PGE transmission line with a 700- 32 foot easement and a PPL transmission line with a 50-foot easement. Extra 33 equipment and personnel will be necessary for transmission pole erection 34 within the easement. 35 Aside from the increased area of potential construction disturbance, the changes that 36 would be allowed if Amendment # 1 were approved would not substantially change the facts 37 on which the Council relied in its previous findings regarding impact to soils. The Council 38 finds that no changes to the site certificate conditions related to soil protection are needed 39 (Conditions 11, 36, 73, 75, 76 and·84). The Council finds that the design, construction and 63 Final Order on Amendment #1 (SFWF}, Table 11, pp. 49-50. 64 Temporary project construction footprint, typical layout (email from Carol Weisskopf, December 22, 2009). 65 Email from Carol Weisskopf, December 22,2009. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 19- DELGADO EXHIBIT 9 Page 23 of 59 operation ofSFS, with the changes proposed by Amendment #1, would not likely result in 2 significant adverse impact to soils, taking into account the mitigation required by the site 3 certificate conditions. Conclusions of Law 4 The Council concludes that SFSwould comply with the Council's Soil Protection 5 Standard if Amendment # 1 were approved. (c) Protected Areas 6 OAR 345-022-0040 7 (I) Except as provided in sections (2) and (3), the Council shall not issue a site 8 certificate for a proposed facility located in the areas listed below. To issue a site 9 certificate for a proposed facility located outside the areas listed below, the 1 o Council must find that, taking into account mitigation, the design, construction 11 and operation ofthe facility are not likely to result in significant adverse impact to 12 the areas listed below. References in this rule to protected areas designated under 13 federal or state statutes or regulations are to the designations in effect as ofMay 14 II, 2007: 15 (a) National parks, including but not limited to Crater Lake National Park and 16 Fort Clatsop National Memorial; 17 (b) National monuments, including but not limited to John Day Fossil Bed 18 National Monument, Newberry National Volcanic Monument and Oregon Caves 19 National Monument; 20 (c) Wilderness areas established pursuant to The Wilderness Act, I6 U.S. C. 21 II3I et seq. and areas recommended for designation as wilderness areas pursuant 22 to 43 U.S.C. 1782; 23 (d) National and state wildlife refuges, including but not limited to Ankeny, 24 Bandon Marsh, Baskett Slough, Bear Valley, Cape Meares, Cold Springs, Deer 25 Flat, Hart Mountain, Julia Butler Hansen, Klamath Forest, Lewis and Clark, 26 Lower Klamath, Malheur, McKay Creek, Oregon Islands, Sheldon, Three Arch 27 Rocks, Umatilla, Upper Klamath, and William L. Finley; 28 (e) National coordination areas, including but not limited to Government 29 Island, Ochoco and Summer Lake; 30 (f) National and state fish hatcheries, including but not limited to Eagle Creek 31 and Warm Springs; 32 (g) National recreation and scenic areas, including but not limited to Oregon 33 Dunes National Recreation Area, Hell's Canyon National Recreation Area, and 34 the Oregon Cascades Recreation Area, and Columbia River Gorge National 35 Scenic Area; 36 (h) State parks and waysides as listed by the Oregon Department ofParks and 37 Recreation and the Willamette River Greenway; SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I- March 12,2010 - 20- DELGADO EXHIBIT 9 Page 24 of 59 (i) State natural heritage areas listed in the Oregon Register ofNatural 2 Heritage Areas pursuant to ORS 273.581; 3 (j) State estuarine sanctuaries, including but not limited to South Slough 4 Estuarine Sanctuary, OAR Chapter 142; 5 (k) Scenic waterways designated pursuant to ORS 390.826, wild or scenic 6 rivers designated pursuant to 16 US. C. 1271 et seq., and those waterways and 7 rivers listed as potentials for designation; 8 (L) Experimental areas established by the Rangeland Resources Program, 9 College ofAgriculture, Oregon State University: the Prineville site, the Burns 10 (Squaw Butte) site, the Starkey site and the Union site; 11 (m) Agricultural experimental stations established by the College of 12 Agriculture, Oregon State University, including but not limited to: 13 Coastal Oregon Marine Experiment Station, Astoria 14 Mid-Columbia Agriculture Research and Extension Center, Hood River 15 Agriculture Research and Extension Center, Hermiston 16 Columbia Basin Agriculture Research Center, Pendleton 17 Columbia Basin Agriculture Research Center, Moro 18 North Willamette Research and Extension Center, Aurora 19 East Oregon Agriculture Research Center, Union 20 Malheur Experiment Station, Ontario 21 Eastern Oregon Agriculture Research Center, Burns 22 Eastern Oregon Agriculture Research Center, Squaw Butte 23 Central Oregon Experiment Station, Madras 24 Central Oregon Experiment Station, Powell Butte 25 Central Oregon Experiment Station, Redmond 26 Central Station, Corvallis 27 Coastal Oregon Marine Experiment Station, Newport 28 Southern Oregon Experiment Station, Medford 29 Klamath Experiment Station, Klamath Falls; 30 (n) Research forests established by the College ofForestry, Oregon State 31 University, including but not limited to McDonald Forest, Paul M Dunn Forest, 32 the Blodgett Tract in Columbia County, the Spaulding Tract in the Mary's Peak 33 area and the Marchel Tract; 34 (o) Bureau ofLand Management areas ofcritical environmental concern, 35 outstanding natural areas and research natural areas; SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 21 - DELGADO EXHIBIT 9 Page 25 of 59 (p) State wildlife areas and management areas identified in OAR chapter 2 635, Division 8. 3 * * * Findings of Fact 4 In the Final Order on Amendment #I (SFWF), the Council found that the design, 5 construction and operation of SFS were not likely to result in significant adverse impact to 66 6 protected areas. Those findings are incorporated herein by this reference. The changes that 7 would be allowed if Amendment # 1 were approved would not substantially change the facts 8 on which the Council relied in its previous findings regarding adverse impacts to protected 9 areas. Some of the land proposed to be added to the site (785 acres) lies within the site 1o boundary of SFC, which the Council has previously determined to be in compliance with the 11 Protected Areas Standard. The amendment would also add approximately 4,855 acres of new 12 lands to the facility site, consisting of several separate areas adjacent to the previously- 67 13 approved site boundary. The amendment request includes a map of these areas. All of the 14 lands proposed to be added to SFS by this amendment are privately-owned and are not 15 adjacent to any protected areas. 68 The new areas do not significantly enlarge the analysis area 16 previously considered by the Council in making findings of compliance with the standard. 17 The Council finds that SFS, including the area proposed to be added to the site by 18 Amendment #1, is not located in any protected area listed in OAR 345-022-0040 and that the 19 design, construction and operation of SFS are not likely to result in a significant adverse 20 impact to any protected area. Conclusions ofLaw 21 For the reasons discussed above, the Council concludes that SFS would comply with 22 the Council's Protected Areas Standard if Amendment # 1 were approved. (d) Scenic Resources 23 OAR 345-022-0080 24 (1) Except for facilities described in section (2), to issue a site certificate, the 25 Council must find that the design, construction and operation ofthefacility, taking 26 into account mitigation, are not likely to result in significant adverse impact to 27 scenic resources and values identified as significant or important in local land use 28 plans, tribal land management plans andfederal land management plans for any 29 lands located within the analysis area described in the project order. 30 * * * Findings of Fact 31 In the Final Order on Amendment #I (SFWF), the Council found that the design, 32 construction and operation of SFS, taking mitigation into account and subject to the site 33 certificate conditions, were not likely to result in significant adverse impact to scenic 34 resources and values identified as significant or important in applicable federal land 66 Final Order on Amendment #1 (SFWF), p. 37. 67 Request for Amendment #1, Section V, Map 5. Map 1 shows the previously-approved site (in yellow) and all added areas, including areas within SFC. 68 Request for Amendment #1, Section IV, p. 3. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 22- management plans or in local land use plans in the analysis area.69 Those findings are 2 incorporated herein by this reference. 3 The changes that would be allowed if Amendment # 1 were approved would not 4 substantially change the facts on which the Council relied in its previous findings regarding 5 visual impacts on identified scenic resources or values. In several respects, the potential visual 6 impact of the facility would be reduced. Approval of the amendment would reduce the 7 maximum number of wind turbines at the facility. The amendment would reduce the 8 maximum allowed length of the 230-kV interconnection line and would reduce the maximum 9 allowed length of aboveground collector lines. Although Option B would allow construction 1o of the interconnection line along a different route than under Option A, the choice of 11 transmission line route would not significantly affect scenic resources. The proposed 12 amendment would reduce the maximum combined length of access roads. The Council finds 13 that the design, construction and operation of SFS are not likely to result in significant 14 adverse impacts to scenic resources aesthetic values identified as significant or important in 15 applicable federal land management plans or in local land use plans in the analysis area. Conclusions ofLaw 16 For the reasons discussed above, the Council concludes that SFS would comply with 17 the Council's Scenic Resources Standard if Amendment #1 were approved. (e) Recreation 18 OAR 345-022-0100 19 (I) Except for facilities described in section (2), to issue a site certificate, the 20 Council must find that the design, construction and operation ofa facility, taking 21 into account mitigation, are not likely to result in a significant adverse impact to 22 important recreational opportunities in the analysis area as described in the 23 project order. The Council shall consider thefollowingfactors injudging the 24 importance ofa recreational opportunity: 25 (a) Any special designation or management ofthe location; 26 (b) The degree ofdemand; 27 (c) Outstanding or unusual qualities; 28 (d) Availability or rareness; 29 (e) Irreplaceability or irretrievability ofthe opportunity. 30 * * * Findings of Fact 31 In the Final Order on Amendment #I (SFWF), the Council found that none ofthe 32 recreational opportunities in the analysis area met the criteria to be considered "important" 70 33 under the factors listed in the standard. Therefore, the Council found that the design, 34 construction and operation of SFS were not likely to result in significant adverse impacts to 69 Final Order on Amendment#] (SFWF), pp. 37-38. 7°Final Order on Amendment #1 (SFWF), p. 38 (incorporating findings. from the Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 76-77). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I- March 12,2010 - 23- DELGADO EXHIBIT 9 Page 27 of 59 recreational opportunities in the analysis area. Those findings are incorporated herein by this 2 reference. 3 The expansion of the site to allow for a larger micrositing area and an optional 4 transmission line route as requested in Amendment #1 would not affect any recreational 5 opportunities that were not previously addressed by the Council. Approval of Amendment # 1 6 would not change the facts or circumstances upon which the Council relied in making 7 findings regarding impacts on recreational opportunities. Conclusions ofLaw 8 For the reasons discussed above, the Council concludes that SFS would comply with 9 the Council's Recreation Standard if Amendment #1 were approved. (f) Public Health and Safety Standards for Wind Energy Facilities 10 OAR 345-024-0010 11 To issue a site certificate for a proposed wind energy facility, the Council must 12 find that the applicant: 13 (1) Can design, construct and operate the facility to exclude members ofthe public 14 from close proximity to the turbine blades and electrical equipment. 15 (2) Can design, construct and operate the facility to preclude structural failure of 16 the tower or blades that could endanger the public safety and to have adequate 17 safety devices and testing procedures designed to warn ofimpending failure and to 18 minimize the consequences ofsuch failure. Findings of Fact 19 In the Final Order on Amendment #I (SFWF), the Council found that the certificate 20 holder could design, construct and operate SFS to exclude members of the public from close 21 proximity to the turbine blades and electrical equipment, to preclude structural failure of the 22 tower or blades that could endanger public safety and to have adequate safety devices and 71 23 testing procedures. Those findings are incorporated herein by this reference. To ensure 24 public safety, the Council included Conditions 12, 26, 40, 47, 59, 60, 61, 62, 63, 64 and 93 in 25 the site certificate. 26 Under the proposed amendment, the certificate holder would have the option to locate 27 the 230-kV transmission line in the alternate corridor described herein, but use ofthe alternate 28 corridor would not result in any new or increased risk of harm to public safety. Likewise, 29 reconfiguration of facility components within the expansion areas requested by the 30 amendment, would not adversely affect public safety. Approval of Amendment #1 would not 31 change the facts or circumstances upon which the Council relied in making findings regarding 32 public health and safety at the SFS site. Conclusions ofLaw 33 For the reasons discussed above, the Council concludes that SFS would comply with 34 the Council's Public Health and Safety Standards for Wind Energy Facilities if Amendment 35 # 1 were approved. 71 Final Order on Amendment #1 (SFWF), pp. 39-40. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 -24- DELGADO EXHIBIT 9 Page 28 of 59 (g) Siting Standards for Wind Energy Facilities 1 OAR 345-024-0015 2 To issue a site certificate for a proposed wind energy facility, the Council must 3 find that the applicant can design and construct the facility to reduce cumulative 4 adverse environmental effects in the vicinity by practicable measures including, 5 but not limited to, the following: 6 (1) Using existing roads to provide access to the facility site, or ifnew roads are 7 needed, minimizing the amount ofland used for new roads and locating them to 8 reduce adverse environmental impacts. 9 (2) Using underground transmission lines and combining transmission routes. 10 (3) Connecting the facility to existing substations, or ifnew substations are 11 needed, minimizing the number ofnew substations. 12 (4) Designing the facility to reduce the risk ofirljury to raptors or other vulnerable 13 wildlife in areas near turbines or electrical equipment. 14 (5) Designing the components ofthe facility to minimize adverse visual features. 15 (6) Using the minimum lighting necessary for safety and security purposes and 16 using techniques to prevent casting glare from the site, except as otherwise 17 required by the Federal Aviation Administration or the Oregon Department of 18 Aviation. Findings of Fact 19 In the Final Order on Amendment #1 (SFWF), the Council found that the certificate 20 holder could design and construct SFS to reduce visual impact, to restrict public access and to 21 reduce cumulative adverse environmental impacts in the vicinity to the extent practicable in 72 22 accordance with the requirements of OAR 345-024-0015. Those findings are incorporated 23 herein by this reference. To address cumulative impacts, the Council included Conditions 58, 24 63, 86, 90, 91, 94 and 95 in the site certificate. 25 The proposed amendment would expand the SFS site to allow for a larger micrositing 26 area and an alternative transmission line route. Nevertheless, significant cumulative impacts 27 of the proposed facility would be reduced. Approval ofthe amendment would reduce the 28 maximum number ofwind turbines at the facility from 120 to 116. The amendment would 29 reduce the permanent footprint of facility components by approximately 4 acres. The 30 amendment would reduce the maximum combined length of new access roads and 31 improvements to existing roads (which would be widened). The amendment would reduce the 32 maximum allowed length ofthe 230-kV interconnection line from 24.3 miles to 20 miles and 33 would reduce the maximum allowed length of aboveground collector line segments from 22.4 73 34 miles to 3.2 miles. The amendment would reduce turbine density from 95 acres per turbine 35 (120 turbines within an 11 ,411-acre site) to 13 7 acres per turbine ( 116 turbines within a 36 15,928-acre site). 72 Final Order on Amendment #I (SFWF), pp. 40-41. 73 Table of typical and maximum components (email from Carol Weisskopf, December 22, 2009). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I- March 12, 2010 - 25- DELGADO EXHIBIT 9 Page 29 of 59 The certificate holder addressed cumulative impacts to avian and bat species in the 74 2 amendment request. The certificate holder noted that the cumulative maximum generating 3 capacity ofSFN, SFC and SFS would be reduced from 909 MW to 845 MW if the Council 4 approves all three amendment requests. In the cumulative impact studies that have been done 5 within the Columbia Plateau region, estimates of avian and bat fatalities associated with wind 6 energy facilities are related to facility generating capacity and to cumulative regional 75 7 generating capacity of multiple facilities. The reduction in the cumulative generating 8 capacity of the three Shepherds Flat facilities would, therefore, result in a reduced impact of 9 these three facilities on avian and bat fatalities in the region. 10 In light of the reduced impacts ofthe SFS compared to the facility as previously- 11 approved, the Council finds that SFS, with the changes proposed by Amendment # 1, can be 12 designed and constructed to reduce visual impact, to restrict public access and to reduce 13 cumulative adverse environmental impacts in the vicinity to the extent practicable in 14 accordance with the requirements of OAR 345-024-0015. Conclusions ofLaw 15 Based on these findings and subject to the conditions of the site certificate, the Council 16 concludes that SFS would comply with the Council's Siting Standards for Wind Energy 17 Facilities if Amendment #1 were approved. (h) Siting Standards for Transmission Lines . 18 OAR 345-024-0090 19 To issue a site certificate for a facility that includes any transmission line under 20 Council jurisdiction, the Council must find that the applicant: 21 (1) Can design, construct and operate the proposed transmission line so that 22 alternating current electric fields do not exceed 9 kV per meter at one meter above 23 the ground surface in areas accessible to the public; 24 (2) Can design, construct and operate the proposed transmission line so that 25 induced currents resulting from the transmission line and related or supporting 26 facilities will be as low as reasonably achievable. Findings ofFact 27 In the Final Order on Amendment #I (SFWF), the Council found that the certificate 28 holder could design, construct and operate the proposed transmission line components of SFS 76 29 in accordance with the standards described in OAR 345-024-0090. Those findings are 30 incorporated herein by this reference. The proposed amendment would allow the certificate 31 holder the option to use a different route for the 230-kV interconnection line, but under either 32 Option A or Option B, the line would be located on private property with limited public 33 access. The Council has found that the aboveground 230-kV transmission line would produce 74 Request for Amendment # 1, Appendix 1, p. 6. 75 Cumulative impacts within the Columbia Plateau region are discussed in the Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 79-84: 76 Final Order on Amendment #1 (SFWF), p. 42 (incorporating findings from the Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 86-87). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 -26- DELGADO EXHIBIT 9 Page 30 of 59 77 1 an electric field well below the 9 kV per meter standard required by OAR 345-024-0090(1). 2 Condition 81 requires the certificate holder to design all transmission lines to comply with the 3 electric field standard. Condition 80 requires the certificate holder to ground fencing to reduce 4 the potential risk of electric shock from induced currents. Condition 17 requires the certificate 5 holder to design and construct transmission lines in accordance with the requirements of the 6 National Electrical Safety Code and to implement a program that provides reasonable 7 assurance that all fences, gates, cattle guards, trailers, or other objects or structures of a 8 permanent nature that could become inadvertently charged are properly grounded. Approval 9 of Amendment #1 would not change the facts or circumstances upon which the Council relied 10 in making findings regarding compliance with the standards in OAR 345-024-0090. Conclusions of Law 11 For the reasons discussed above, the Council concludes that SFS would comply with 12 the Council's Siting Standards for Transmission Lines if Amendment #1 were approved. 4. Standards to Protect Wildlife (a) Threatened and Endangered Species 13 OAR 345-022-0070 14 To issue a site certificate, the Council, after consultation with appropriate state 15 agencies, must find that: 16 (1) For plant species that the Oregon Department ofAgriculture has listed as 17 threatened or endangered under ORS 564.105(2), the design, construction and 18 operation ofthe proposedfacility, taking into account mitigation: 19 (a) Are consistent with the protection and conservation program, ifany, that 20 the Oregon Department ofAgriculture has adopted under ORS 564.105(3); or 21 (b) Ifthe Oregon Department ofAgriculture has not adopted a protection and 22 conservation program, are not likely to cause a significaflt reduction in the 23 likelihood ofsurvival or recovery ofthe species; and 24 (2) For wildlife species that the Oregon Fish and Wildlife Commission has listed 25 as threatened or endangered under ORS 496.172(2), the design, construction and 26 operation ofthe proposedfacility, taking into account mitigation, are not likely to 27 cause a significant reduction in the likelihood ofsurvival or recovery ofthe 28 species. Findings of Fact 29 In the Final Order on Amendment #1 (SFWF), the Council found that the design, 30 construction and operation of SFS would not have the potential to significantly reduce the 31 likelihood of the survival or recovery of any threatened or endangered plant or wildlife 78 32 species listed under Oregon law. Those findings are incorporated herein by this reference. 77 Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 86-87. 78 Final Order on Amendment #1 (SFWF), pp. 42-44. A discussion of threatened or endangered plant and animal species that could potentially occur within the Shepherds Flat Wind Farm site (which encompassed the sites of SFN, SFC and SFS) and information about wildlife surveys conducted in the area are included in the Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 88-96. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 • 27. DELGADO EXHIBIT 9 Page 31 of 59 The proposed amendment would not significantly change wind facility components that 2 would be authorized for construction and operation at SFS or otherwise significantly alter the 3 facts upon which the Council relied in making its earlier findings. 4 In the Final Order on the Application for the Shepherds Flat Wind Farm, the Council 5 found that one State-listed threatened plant species, Laurent's milk-vetch, has the potential to 79 6 occur within the five-mile analysis area around the former SFWF site boundary. The species 7 was not observed within the SFWF site boundary and was considered not likely to occur 8 within the site boundary because its range was believed to lie at elevations above 1,970 feet. 80 9 The species was recently observed, however, at elevations between 800 to 860 feet. Suitable 10 habitat for Laurent's milk-vetch may exist in that elevation range within the proposed 11 expansion areas that lie outside the previously-approved site boundaries for SFS. The 12 certificate holder has agreed to survey the area and to avoid impact to threatened or 81 13 endangered plant species. In Revision 14 discussed below at page 53, the Council modifies 14 Condition 86 to require a pre-construction survey for threatened or endangered plant species 15 and to require exclusion fencing during construction ifLaurent's milk-vetch or any other 16 threatened or endangered plant species is found. 17 In the Final Order on the Application for the Shepherds Flat Wind Farm, the Council 18 found that that two State-listed endangered wildlife species (gray wolf and Washington 19 ground squirrel) and two State-listed threatened species (bald eagle and chinook salmon) have 20 the potential to occur within the five-mile analysis area around the former SFWF site 82 21 boundary. 22 Gray wolves may have historically been present in Gilliam or Morrow Counties, but 23 there have been no recent observations of the species within the analysis area. There is 83 24 evidence of natural dispersion ofthe species into the state from neighboring lands in Idaho. 25 Bald eagles forage and roost along the Columbia River. Eagles are unlikely to forage 26 in the upland areas within the site boundary due to the lack of suitable perch trees. Conditions 27 63, 90 and 91 include measures to mitigate the risk of injury to bald eagles. 28 The Council has previously found that there is no suitable habitat for chinook salmon 84 29 within the former SFWF site boundary. The new lands proposed to be added to the SFS site 85 30 do not contain aquatic habitat. 79 The species is identified as "Laurence's milk-vetch" in the Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), p. 89. 8°Final Order on Amendment #1 for the Leaning Juniper 11 Wind Power Facility (November 20, 2009), p. 61. 81 Email from Patricia Pilz, January 13,2010. 82 Final Order on the Applicationfor the Shepherds Flat Wind Farm (July 25, 2008), p. 91. The federally-listed threatened grizzly bear historically occurred in Gilliam and Morrow counties, but is now considered extirpated from Oregon (Request for Amendment# 1, Appendix 1, p. 1). The federally-listed threatened Canada lynx is considered a very rare species in Oregon (Oregon Natural Heritage Information Center, Rare, Threatened and Endangered Species in Oregon, March 2007). Although the lynx potentially occurs in Morrow County (http://www.fws.gov/oregonfwo/Specics!Data!CanadaLvnxL), the USFWS Oregon Fish & Wildlife Office does not include the species on current lists of threatened species occurring in Morrow County or Gilliam County (http://www.fws.gov/oregonf\¥o/Species/ListsL). 83 Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), p. 94. 84 Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), p. 95. This finding applied as well to the federally-listed threatened steelhead and endangered sockeye salmon. 85 Request for Amendment #1, Appendix 1, p. 3. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 28- DELGADO EXHIBIT 9 Page 32 of 59 In the Final Order on Amendment #I (SFWF), the Council found that Washington 2 ground squirrels (WGS) were present near the SFS site boundary and that a portion ofthe 3 burrow area was within the site boundary.86 This area is part ofthe land proposed to be 4 removed from SFS and added to SFC. Condition 86(h) includes construction restrictions near 5 the identified WGS colony to mitigate potential risks to the species. Condition 83 requires the 6 certificate holder to implement the Wildlife Monitoring and Mitigation Plan (WMMP), which 7 includes an assessment of the status of the WGS colony for two years after the facility 8 becomes commercially operational. These requirements would be removed from the SFS site 9 certificate and added to the SFC site certificate, if the Council approves both companion 10 amendment requests that have been submitted by the certificate holders. 11 Surveys of suitable habitat within the former SFWF site boundary (plus a 1,000-foot 12 buffer) were conducted in 2007 and 2008.87 In May and June 2009, the certificate holder 13 conducted surveys for WGS within suitable habitat in the area of the proposed Saddle Butte 14 Wind Park, which included approximately 4,830 acres now pro~osed to be added to SFS 88 15 under this amendment. No active WGS colonies were found. 8 Four areas containing burrow 16 entrances were found but showed no sign of recent WGS activity.90 ODFW has requested pre 17 construction surveys for threatened, endangered or sensitive wildlife species, including WGS, 18 in areas having suitable habitat on lands that the Council has not previously approved for a 91 19 site certificate. The certificate holder has agreed to conduct pre-construction surveys using a 20 protocol approved by ODFW and to avoid impacts to the area within 1,000 feet of any 21 Category 1 WGS habitat that is found within the survey area during the period in which the 22 squirrels are active. In Revision 14 discussed below at page 53, the Council modifies 23 Condition 86 to require pre-construction surveys for State-listed threatened, endangered or 24 sensitive wildlife species in the new areas within 1,000 feet of any area potentially disturbed 25 by facility construction, including WGS surveys, and to require avoidance ofthe area within 26 1,000 feet of any Category 1 WGS habitat during the period that WGS are active. 27 In Revision 15, the Council modifies Condition 92 to include a lower speed limit near 28 any Category 1 or Category 2 WGS habitat identified during the pre-construction survey. 29 For the reasons discussed above, the Council finds that the State-listed threatened bald 30 eagle and the State-listed endangered WGS may at some times be present in some locations 31 within the SFS site boundary, including the areas that would be added by Amendment #1, but 32 that the design, construction and operation of the SFS are unlikely to cause a significant 33 reduction in the likelihood of survival or recovery of either species, taking into account the 34 mitigation required by the site certificate conditions. 86 Final Order on Amendment #1 (SFWF), p. 43; Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), p. 94. 87 Shepherds Flat Wind Farm Application Supplement, Attachment P-Sa; Addendum to the Surveys for Washington Ground Squirrels and Burrowing Owls at the Shepherds Flat Wind Farm, March I7, 2008, Fig. I (email from Patricia Pilz, March I7, 2008). 88 The certificate holder provided maps showing the areas searched for WGS within and near the proposed expanded SFS site boundary (email from Patricia Pilz, December I6, 2009). 89 Request for Amendment #I, Attachment I, p. 4. 90 One of the burrow areas is located in the lands proposed to be added to SFC; three of the burrow areas are located in the lands proposed to be added to SFS (email from Carol Weisskopf, January I4, 20IO). 91 Email from Steve Cherry, ODFW, December I7, 2009. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I- March I2, 20IO - 29- DELGADO EXHIBIT 9 Page 33 of 59 Conclusions ofLaw For the reasons discussed above and subject to the site certificate conditions described 2 herein, the Council concludes that SFS would comply with the Council's Threatened and 3 Endangered Species Standard if Amendment # 1 were approved. (b) Fish and Wildlife Habitat 4 OAR 345-022-0060 5 To issue a site certificate, the Council mustfindthat the design, construction and 6 operation ofthe facility, taking into account mitigation, are consistent with the fish 7 and wildlife habitat mitigation goals and standards ofOAR 635-415-0025 in effect 8 as ofSeptember 1, 2000. Findings ofFact 9 In the Final Order on Amendment # 1 (SFWF), the Council found that the design, 10 construction and operation ofSFS would be consistent with the ODFW habitat mitigation 92 11 goals and standards. The Council made findings regarding the characteristics of the habitat 93 12 types within the SFS site boundary. The Council made findings regarding potential habitat 94 13 impacts and mitigation requirements. Those findings are incorporated herein by this 14 reference. 15 In the amendment request, the certificate holder assessed the proposed expansion areas 95 16 for special status plant and wildlife species and identified habitat categories and subtypes. 17 The proposed amendment would add approximately 5,640 acres to the SFS site, ofwhich 18 approximately 785 acres lie within the previously-approved SFC site. Approximately 1,123 19 acres would be removed from the SFS site by this amendment. The certificate holder 20 estimated the habitat impacts of SFS, including the expansion area, based on a "typical project 96 21 layout" as shown in Table 3: Table 3: Typical Layout Habitat Impacts Acres Areas of Areas of Habitat Within the Habitat Type temporary permanent Subtype Site impact impact Boundary (acres) (acres) Category 1 Raptor nests RN 0.06 0 0 Wetland WL 0.03 0 0 Subtotal 0.09 0 0 92 Final Order on Amendment #I (SFWF), p. 54. 93 Final Order on Amendment# 1 (SFWF), pp. 49-51. 94 Final Order on Amendment #I (SFWF), pp. 51-54. 95 Request for Amendment #1, Appendix 1. 96 Based on the habitat disturbance impact table (email from Carol Weisskopf, December 22, 2009). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 30- DELGADO EXHIBIT 9 Page 34 of 59 Category 2 Grassland GL 355.68 1.35 0.22 Raptor nests RN 2.11 0 0 Shrub-steppe -sage SS-S 562.21 9.42 2.33 Wetland-wash WL-W 7.99 0 0 Subtotal 927.99 10.77 3 Category 3 Curlew CUR 93.69 0 0 Grassland GL 1215.89 31.06 6.49 Shrub-steppe - rabbitbrush SS-R 57.25 0.44 0.1 Shrub-steppe - sage SS-S 203.93 2.11 0.45 Subtotal 1,570.76 33.61 7.04 Category 4 Grassland PC 3,268.53 23.96 0.35 Previously cultivated RS 514.8 12.81 1.79 Rock and soil 53.6 0.19 0.04 Subtotal 3,836.93 36.96 2.18 Category 5 Previously cultivated PC 686.37 28.25 5.03 Subtotal 686.37 28.25 5.03 Category 6 Animal Facility AF 20.43 0.06 0 Dryland wheat ow 8,743.2 222.78 43.84 Road and parking RP 110.46 1.22 0.98 Structures ST 31.8 0 0 Subtotal 8,905.89 224.06 44.82 Total Area 15,928.03 333.65 61.62 For micrositing purposes, the applicants estimated the maximum habitat impacts of the 2 SFS facilit~ based on a "worst-case layout." The estimated areas of affected habitat are shown 7 3 in Table 4. Table 4: Maximum Habitat Impacts Areas of Areas of Habitat temporary permanent Habitat Type Subtype impact impact (acres) (acres) Category 1 Raptor nests RN 0 0 Wetland WL 0 0 Subtotal 0 0 97 Based on the habitat disturbance impact table (email from Carol Weisskopf, December 22, 2009). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 31 - DELGADO EXHIBIT 9 Page 35 of 59 Category 2 Grassland GL 1.74 0.22 Raptor nests RN 0 0 Shrub-steppe - sage SS-S 11.53 2.33 Wetland-wash WL-W 0 0 Subtotal 13.27 3 Category 3 Curlew CUR 0 0 Grassland GL 37.97 6.49 Shrub-steppe - rabbitbrush SS-R 0.51 0.1 Shrub-steppe - sage SS-S 2.76 0.45 Subtotal 41.24 7.04 Category4 Grassland PC 31.49 0.38 Previously cultivated RS 15.55 1.79 Rock and soil 0.31 0.05 Subtotal 47.35 2.22 Category 5 Previously cultivated PC 32.38 5.03 Subtotal 32.38 5.03 Category 6 Animal Facility AF 0 0 Dryland wheat DW 273.43 43.84 Road and parking RP 1.74 0.98 Structures ST 0 0 Subtotal 275.17 44.82 Total Area 409.41 61.66 The maximum habitat impacts analysis allows for facility micrositing while ensuring 2 that the certificate holder can mitigate for the habitat impacts of any micrositing 3 configuration. The maximum habitat impacts analysis shapes the upper bounds of the quantity 4 and quality of mitigation acres that would be required. Under Condition 29, the certificate 5 holder must provide to the Department a description of the final design configuration and an 6 assessment of the affected habitats before beginning construction. The actual habitat impacts 7 and the size of the mitigation area required under Condition 85 and the incorporated Habitat 8 Mitigation Plan are determined according to the final configuration of facility components. 9 Condition 29 requires consultation with ODFW at the time of the pre-construction habitat 1 o assessment and allows the Department to employ a qualified contractor to confirm the habitat 11 assessment by on-site inspection. ODFW policy guidance for assigning habitat categories that 12 was in place when the SFWF site certificate was issued (July 25, 2008) will be applied to 13 determine habitat categories under Condition 29 on lands lying within the original SFWF site 98 14 boundary. 98 Any new policy guidance issued after July 25, 2008, will not be applied to the previously-approved areas (teleconference with ODFW, the applicants and the Department, July 29, 2009). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 . 32. DELGADO EXHIBIT 9 Page 36 of 59 Compared with the previously-approved site, the typical project layout would decrease 2 the permanent footprint by approximately 4 acres. Temporary disturbance would increase by 3 approximately 108 acres for the reasons discussed above at page 18. In the maximum habitat 4 impacts layout, temporary disturbance would increase by about 116.7 acres. All temporary 5 disturbance areas must be restored after completion of construction, as required by the 6 Revegetation Plan that is incorporated in Condition 84. No Category 1 habitat would be 7 affected by the permanent footprint ofthe facility or by temporary construction disturbance. 8 Approximately 13 acres Category 2 habitat could be affected temporarily during construction 9 or by placement of permanent components. In the typical layout, 84 percent of the permanent 10 footprint of the facility would be on lower-value habitat (Category 4, 5 or 6). 11 The Final Order on Amendment #1 (SFWF), the Council made findings regarding 99 12 mitigation of potential adverse impacts to wildlife and wildlife habitat. Those findings are 13 incorporated herein by this reference. Condition 83 requires the certificate holder to 14 implement the Wildlife Monitoring and Mitigation Plan (WMMP). In Revision 12 discussed 15 below at page 52, the Department recommended modification ofthe WMMP as shown in 16 Attachment A to remove the WGS colony monitoring component.' Because the colony area is 17 part of the land that would be removed from the SFS site and added to the SFC site, the WGS 18 monitoring component would apply to SFC under the proposed amendments. Condition 84 19 requires the certificate holder to implement the Revegetation Plan as incorporated in the Final 20 Order on Amendment # 1 (SFWF) as Attachment SFC-B. The proposed amendment would 21 increase the area within the site boundary from approximately 11,411 acres to approximately 22 15,928 acres as shown in Table 3 above but would otherwise require no substantive changes 10 23 to the Revegetation Plan. °Condition 85 requires the certificate holder to implement the 24 Habitat Mitigation Plan. In Revision 13, the Department recommended modification of the 25 Habitat Mitigation Plan as shown in Attachment C to r~flect changes in the habitat acreages 26 potentially affected as shown in Table 4. The size of the habitat mitigation area will be 27 determined based on the final design configuration of the facility and the habitat assessment 28 that is required by Condition 29. In Revision 14, the Department recommended modification 29 of Condition 86 to require the pre-construction surveys for State-listed threatened, endangered 30 or sensitive wildlife species recommended by ODFW. Conclusions of Law 31 For the reasons discussed above and subject to the site certificate conditions described 32 herein, the Council concludes that SFS would comply with the Council's Fish and Wildlife 33 Habitat Standard if Amendment # 1 were approved. 5. Standards Not Applicable to Site Certificate Eligibility 34 Under ORS 469.501(4), the Council may issue a site certificate without making the 35 findings required by the standards discussed in this section (Structural Standard, Historic, 36 Cultural and Archaeological Resources Standard, Public Services Standard and Waste 99 Final Order on Amendment #1 (SFWF), pp. 53-54 (incorporating the findings from the Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 109-114). 100 The acreages shown on page 1, lines 21-22, of the previously-approved Revegetation Plan for SFS do not reflect the area added by this amendment. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 33- DELGADO EXHIBIT 9 Page 37 of 59 Minimization Standard).101 Nevertheless, the Council may impose site certificate conditions 2 based on the requirements of these standards. (a) Structural Standard 3 OAR 345-022-0020 4 (I) Except for facilities described in sections (2) and (3), to issue a site certificate, 5 the Council must find that: 6 (a) The applicant, through appropriate site-specific study, has adequately 7 characterized the site as to Maximum Considered Earthquake Ground Motion 8 identified at International Building Code (2003 Edition) Section 1615 and 9 maximum probable ground motion, taking into account ground failure and 10 amplification for the site specific soil profile under the maximum credible and 11 maximum probable seismic events; and 12 (b) The applicant can design, engineer, and construct the facility to avoid dangers 13 to human safety presented by seismic hazards affecting the site that are expected to 14 result from maximum probable ground motion events. As used in this rule "seismic 15 hazard" includes ground shaking, ground failure, landslide, liquefaction, lateral 16 spreading, tsunami inundation, fault displacement, and subsidence; 17 (c) The applicant, through appropriate site-specific study, has adequately 18 characterized the potential geological and soils hazards ofthe site and its vicinity 19 that could, in the absence ofa seismic event, adversely affect, or be aggravated by, 20 the construction and operation ofthe proposedfacility; and 21 (d) The applicant can design, engineer and construct the facility to avoid dangers 22 to human safety presented by the hazards identified in subsection (c). 23 (2) The Council may issue a site certificate for a facility that would produce power 24 from wind, solar or geothermal energy without making the findings described in 25 section (1). However, the Council may apply the requirements ofsection (1) to 26 impose conditions on a site certificate issued for such a facility. 27 * * * 28 Related Conditions 29 In the Final Order on Amendment # 1 (SFWF), the Council made findings regarding 102 30 the seismic, geological and soil hazards within the SFS site boundary. Those findings are 31 incorporated herein by this reference. The site certificate includes conditions addressing 32 structural safety (Conditions 12, 13, 14, 47, 48 and 49). The expansion of the site to 101 This statute provides that the Council may not impose certain standards "to approve or deny an application for an energy facility producing power from wind." ORS 469.300 defines an "application" as "a request for approval of a particular site or sites for the construction and operation of an energy facility or the construction and operation of an additional energy facility upon a site for which a certificate has already been issued, filed in accordance with the procedures established pursuant to ORS 469.300 to 469.563, 469.590 to 469.619, 469.930 and 469.992." Although ORS 469.501(4) does not explicitly refer to a request for a site certificate amendment, we assume that the Legislature intended it to apply. 102 Final Order on Amendment #1 (SFWF), p. 56 (incorporating the findings in the Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 115-117). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I- March 12, 2010 - 34- DELGADO EXHIBIT 9 Page 38 of 59 accommodate a reconfiguration of the wind turbines and related components as well as an 2 alternative route for a 230-kV transmission line as requested in Amendment #1 would not 3 result in placement of facility components within geologic areas dissimilar to those that have 4 been addressed by the Council for the approved site. The Council finds that no changes to the 5 site certificate conditions related to the Structural Standard are needed. (b) Historic, Cultural and Archaeological Resources 6 OAR 345-022-0090 7 (1) Except for facilities described in sections (2) and (3), to issue a site certificate, 8 the Council must find that the construction and operation ofthe facility, taking 9 into account mitigation, are not likely to result in significant adverse impacts to: 10 (a) Historic, cultural or archaeological resources that have been listed on, or 11 would likely be listed on the National Register ofHistoric Places; 12 (b) For a facility on private land, archaeological objects, as defined in ORS 13 358.905(1)(a), or archaeological sites, as defined in ORS 358.905(l)(c); and 14 (c) For a facility on public land, archaeological sites, as defined in ORS 15 358.905(1)(c). 16 (2) The Council may issue a site certificate for a facility that would produce power 17 from wind, solar or geothermal energy without making the findings described in 18 section (1). However, the Council may apply the requirements ofsection (1) to 19 impose ·conditions on a site certificate issued for such a facility. 20 * * * Related Conditions 21 In the Final Order on the Application for the Shepherds Flat Wind Farm, the Council 22 reviewed cultural resource surveys of the areas within the SFS site boundary and the areas 103 23 within the SFC site boundary that would be added to SFS by this amendment. The 24 Council's previous findings are incorporated herein by this reference. The cultural resource 25 surveys were conducted in consultation with the State Historic Preservation Office (SHPO), 26 the Confederated Tribes of Warm Springs and the Confederated Tribes of the Umatilla Indian 27 Reservation. The Council adopted Conditions 43, 44 and 45 to safeguard cultural resources in 28 the SFS area. These conditions would apply as well to the proposed expansion area. 29 The Request for Amendment # 1 includes a cultural resource overview of the proposed 104 30 site ofthe Saddle Butte Wind Park. The Saddle Butte overview is relevant because most of 31 the new lands that would be added to SFS by this amendment lie within the proposed Saddle 32 Butte Wind Park site. The overview consisted of a literature review and records search ofthe 33 area, a discussion of the historical, cultural and ethnographic setting, and recommendations 34 for field surveys of locations considered to have moderate to high potential for prehistoric or 35 historic period resources. The overview did not include any on-site ground survey for historic, 36 cultural or archaeological resources. Condition 43(d) requires the certificate holder to conduct 103 Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 118-122. 104 "Cultural Resource Overview of the Proposed Saddle Butte Wind Park Project, Gilliam and Morrow Counties, Oregon" (October 8, 2009), Request for Amendment #1, Appendix 2. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 . 35. DELGADO EXHIBIT 9 Page 39 of 59 1 a field investigation for historic, cultural or archaeological resources prior to construction in 2 any areas of potential construction disturbance that have not been previously surveyed. The 3 Council finds that no changes to the site certificate conditions related to the Historic, Cultural 4 and Archaeological Resources Standard are needed. (c) Public Services 5 OAR 345-022-0110 6 (I) Except for facilities described in sections (2) and (3), to issue a site certificate, 7 the Council must find that the construction and operation ofthe facility, taking 8 into account mitigation, are not likely to result in significant adverse impact to the 9 ability ofpublic and private providers within the analysis area described in the 10 project order to provide: sewers and sewage treatment, water, storm water 11 drainage, solid waste management, housing, traffic safety, police andfire 12 protection, health care and schools. 13 (2) The Council may issue a site certificate for a facility that would produce power 14 from wind, solar or geothermal energy without making the findings described in 15 section (I). However, the Council may apply the requirements ofsection (I) to 16 impose conditions on a site certificate issued for such a facility. 17 * * * Related Conditions 18 In the Final Order on Amendment #I (SFWF), the Council addressed the potential 19 impacts of construction and operation of SFS on the ability of public and private providers 105 20 within the analysis area to provide public services. The Council's previous findings are 21 incorporated herein by this reference. The site certificate includes conditions addressing 22 public services (Conditions 27, 52, 53, 54, 55, 56, 65, 66, 67, 68, 69, 70, 73, 75, 78, 99 and 23 100). Amendment # 1 would expand the facility site to allow for a larger micrositing area and 24 an optional transmission line route but would not change the analysis of affected public 25 services. The Council finds that no changes to the site certificate conditions related to the 26 Public Services Standard are needed. (d) Waste Minimization 27 OAR 345-022-0120 28 (I) Except for facilities described in sections (2) and (3), to issue a site certificate, 29 the Council must find that, to the extent reasonably practicable: 30 (a) The applicant's solid waste and wastewater plans are likely to minimize 31 generation ofsolid waste and wastewater in the construction and operation ofthe 32 facility, and when solid waste or wastewater is generated, to result in recycling 33 and reuse ofsuch wastes; 34 (b) The applicant's plans to manage the accumulation, storage, disposal and 35 transportation ofwaste generated by the construction and operation ofthefacility 36 are likely to result in minimal adverse impact on surrounding and adjacent areas. 105 Final Order on Amendment #1 (SFWF), p. 57 (incorporating the findings in the Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 122-127). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 36- DELGADO EXHIBIT 9 Page 40 of 59 (2) The Council may issue a site certificate for a facility that would produce power 2 from wind, solar or geothermal energy without making the findings described in. 3 section (1). However, the Council may apply the requirements ofsection (I) to 4 impose conditions on a site certificate issued for such a facility. Related Conditions 5 In the Final Order on Amendment # 1 (SFWF), the Council made findings and adopted 6 site certificate conditions regarding the solid waste and wastewater likely to be generated 7 during the construction, operation and retirement of SFS and the impact on surrounding 106 8 communities. The Council's previous findings are incorporated herein by this reference. 9 The Council adopted Conditions 50, 51, 99, 100, 101 and 102 to address waste management 1o concerns. Amendment # 1 would expand the facility site to allow for a larger micrositing area 11 and an optional transmission line route but would not change the analysis of waste 12 minimization. The Council finds that no changes to the site certificate conditions related to the 13 Waste Minimization Standard are needed. V. OTHER APPLICABLE REGULATORY REQIDREMENTS: FINDINGS AND CONCLUSIONS 1. Requirements under Council Jurisdiction 14 Under ORS 469.503(3) and under the Council's General Standard of Review (OAR 15 345-022-0000), the Council must determine that a facility complies with "all other Oregon 16 statutes and administrative rules identified in the project order, as amended, as applicable to 17 the issuance of a site certificate for the proposed facility." Other Oregon statutes and 18 administrative rules that are applicable to the changes requested in Amendment #1 include the 19 Department ofEnvironmental Quality (DEQ) noise control regulations, the regulations 20 adopted by the Department of State Lands (DSL) for removal or fill of material affecting 21 waters of the state, the Oregon Water Resources Department's (OWRD) regulations for water 22 rights and the Council's statutory authority to consider protection of public health and safety. (a) Noise Control Regulations 23 The applicable noise control regulations are as follows: 24 OAR 340-035-0035 25 Noise Control Regulations for Industry and Commerce 26 (1) Standards and Regulations: 27 * * * 28 (b) New Noise Sources: 29 * * * 30 (B) New Sources Located on Previously Unused Site: 31 (i) No person owning or controlling a new industrial or commercial noise source 32 located on a previously unused industrial or commercial site shall cause or permit 33 the operation ofthat noise source if the noise levels generated or indirectly caused 106 Final Order on Amendment #1 (SFWF), p. 58 (incorporating the findings from the Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 76-77). SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 37- DELGADO EXHIBIT 9 Page 41 of 59 by that noise source increase the ambient statistical noise levels, L10 or L50, by 2 more than 10 dBA in any one hour, or exceed the levels specified in Table 8, as 3 measured at an appropriate measurement point, as specified in subsection (3)(b) 4 ofthis rule, except as specified in subparagraph (l)(b)(B)(iii). 5 (ii) The ambient statistical noise level ofa new industrial or commercial noise 6 source on a previously unused industrial or commercial site shall include all 7 noises generated or indirectly caused by or attributable to that source including 8 all ofits related activities. Sources exempted/rom the requirements ofsection (1) 9 ofthis rule, which are identified in subsections (5)(b)- (f), (J), and (k) ofthis rule, 10 shall not be excludedfrom this ambient measurement. 11 (iii) For noise levels generated or caused by a wind energy facility:· 12 (I) The increase in ambient statistical noise levels is based on an assumed 13 background L50 ambient noise level of26 dBA or the actual ambient background 14 level. The person owning the wind energy facility may conduct measurements to 15 determine the actual ambient L10 and L50 background level. 16 (II) The "actual ambient background level" is the measured noise level at the 17 appropriate measurement point as specified in subsection (3)(b) ofthis rule using 18 generally accepted noise engineering measurement practices. Background noise 19 measurements shall be obtained at the appropriate measurement point, 20 synchronized with windspeed measurements of hub height conditions at the 21 nearest wind turbine location. "Actual ambient background level" does not 22 include noise generated or caused by the wind energy facility. 23 (III) The noise levels from a wind energy facility may increase the ambient 24 statistical noise levels L10 and L50 by more than 10 dBA (but not above the limits 25 specified in Table 8), ifthe person who owns the noise sensitive property executes 26 a legally effective easement or real covenant that benefits the property on which 27 the wind energy facility is located. The easement or covenant must authorize the 28 wind energy facility to increase the ambient statistical noise levels, L1 0 or L50 on 29 the sensitive property by more than 10 dBA at the appropriate measurement point. 30 (IV) For purposes ofdetermining whether a proposed wind energy facility 31 would satisfy the ambient noise standard where a landowner has not waived the 32 standard, noise levels at the appropriate measurement point are predicted 33 assuming that all ofthe proposed windfacility's turbines are operating between 34 cut-in speed and the wind speed corresponding to the maximum sound power level 35 established by IEC 61400-11 (version 2002-12). These predictions must be 36 compared to the highest ofeither the assumed ambient noise level of26 dBA or to 37 the actual ambient background L1 0 and L50 noise level, ifmeasured The facility 38 complies with the noise ambient background standard if this comparison shows 39 that the increase in noise is not more than 10 dBA over this entire range ofwind 40 speeds. 41 (V) For purposes ofdetermining whether an operating wind energy facility 42 complies with the ambient noise standard where a landowner has not waived the 43 standard, noise levels at the appropriate measurement point are measured when SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 38- DELGADO EXHIBIT 9 Page 42 of 59 the facility's nearest wind turbine is operating over the entire range ofwind 2 speeds between cut-in speed and the windspeed corresponding to the maximum 3 sound power level and no turbine that could contribute to the noise level is 4 disabled. The facility complies with the noise ambient background standard if the 5 increase in noise over either the assumed ambient noise level of26 dBA or to the 6 actual ambient background LI 0 and L50 noise level, if measured, is not more than 7 I 0 dBA over this entire range ofwind speeds. 8 (VI) For purposes ofdetermining whether a proposed wind energy facility 9 would satisfy the Table 8 standards, noise levels at the appropriate measurement 10 point are predicted by using the turbine's maximum sound power level following 11 procedures established by IEC 6I400-II (version 2002-I2), and assuming that all 12 ofthe proposed wind facility's turbines are operating at the maximum sound 13 power level. 14 (VII) For purposes ofdetermining whether an operating wind energy facility 15 satisfies the Table 8 standards, noise generated by the energy facility is measured 16 at the appropriate measurement point when the facility's nearest wind turbine is 17 operating at the windspeed corresponding to the maximum sound power level and 18 no turbine that could contribute to the noise level is disabled. 19 * * * Findings of Fact 20 In the Final Order on the Application for the Shepherds Flat Wind Farm, the Council 21 concluded that the proposed SFWF, subject to site certificate conditions, would comply with 107 22 the State noise control regulations. The Council's findings were based on analysis of 23 predicted noise levels from a "default layout" that included 280 Siemens SWT-93 2.3-MW 24 turbines in the northern project area and 23 Vestas V90 3.0-MW turbines in the southern 25 project area and that included two substations contributing to predicted noise levels. The 26 Council found that the SFWF would comply with the applicable noise regulations if it were 27 constructed according to the default layout and if the certificate holder acquired noise waivers 108 28 from the owners of five properties where the ambient degradation limit would be exceeded. 29 In the Final Order on Amendment #I (SFWF), the Council found that the division of 30 the SFWF into three separate facilities within the previously-approved site boundary of the 31 SFWF with no increase in the combined maximum number of turbines that could be built 109 32 would not significantly change the noise analysis. The Council found that the cumulative 33 noise emissions from SFN, SFC and SFS would comply with the noise regulations and that 34 the separate noise emissions from each of the proposed facilities would also comply with the 35 regulations if each facility were constructed according to the previously-analyzed default 36 layout and ifthe certificate holder acquired noise waivers from the owners of properties 37 where the ambient degradation limit would be exceeded. 38 The changes to SFS requested in the present amendment include expansion of the site 39 and potential micrositing area for SFS turbines. Approval of the amendment would decrease 107 Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), p. 136. 108 Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), p. 135. 109 Final Order on Amendment #I (SFWF), p. 60. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 . 39. DELGADO EXHIBIT 9 Page 43 of 59 1 the maximum number ofturbines authorized at the facility from 120 to 116. The Department 2 requested a new noise analysis based on the maximum number of turbines that would be 3 authorized at the facility if the amendment were approved. The certificate holder provided a 4 noise analysis based on 116 GE 2.5xl turbines and a revised turbine layout (different from the 110 5 layout used in the original noise analysis for SFWF). The certificate holder's noise analysis 6 was conducted by Mr. Bruce Walker, PhD of Channel Island Acoustics, the same consultant 7 who performed the original SFWF noise study. Mr. Kerrie Standlee, P.E. ofDaly-Standlee & 8 Associates, Inc., reviewed the SFS study for the Department and confirmed Walker's 9 findings. 1o The original noise study conducted for SFWF did not include sound attenuation · 11 factors for ground absorption and topographical barriers, and so the results were considered to 12 be very conservative. For the SFS noise analysis, Walker accounted for ground and 111 13 topographical attenuation along with atmospheric attenuation and distance attenuation. At 14 the request of the Department, Walker predicted sound levels at 29 noise sensitive receivers 15 (Receiver R-1 and Receivers R-12 through R-39) using the manufacturer's stated "apparent 16 sound power level" data increased by what was believed to be the "uncertainty" factor. Upon 17 review of the manufacturer's specification data, however, Standlee determined that the 18 certificate holder's analysis had used the standard deviation of 1.5 decibels (dB) associated 112 19 with turbine test reproducibility rather than 3 dB associated with the "uncertainty" factor. 20 The certificate holder elected to use the assumed ambient hourly L50 noise level of26 21 dBA for the background ambient noise level at each noise sensitive receiver as allowed under 22 OAR 340-035-0035(1)(b)(B)(iii)(I) rather than to conduct noise measurements at the 23 receivers. Accordingly, to show compliance with the ambient noise degradation test, the noise 24 generated by the operation of the proposed SFS wind turbines between cut-in wind speed and 25 the wind speed associated with the maximum sound power level must not cause the hourly L50 26 noise level at any noise sensitive receiver to exceed 36 dBA. 27 The certificate holder proposes to construct up to 116 wind turbines within the site 28 boundary. The certificate holder requests the flexibility to locate the turbines anywhere within 29 the proposed site boundary, subject to the conditions of the site certificate. A potential layout 113 30 of turbines was provided for 116 GE 2.5-MW turbines. The certificate holder provided A- 31 weighted overall sound power level and octave band data for the GE wind turbine model that 114 32 was used in the noise modeling. To support the conclusion that the submitted layout would 33 be in compliance with the noise regulations, Walker modeled the sound pressure levels that 34 would be found at each noise sensitive receiver based on this turbine layout. 35 The noise study results show that the noise radiating from the turbines would not 36 exceed the DEQ maximum allowable hourly L5o noise level limit of 50 dBA or the hourly L10 37 noise level limit of 55 dBA at any ofthe 29 noise sensitive receivers. Standlee considered this 38 finding to be valid even if the total3-dBA "uncertainty" factor had been added to the sound 39 power level in the noise predictions. The results of the study show that, with or without the 40 inclusion ofthe additional sound power level adjustment factor, the noise levels at 19 ofthe 110 Email from Patricia Pilz, January 16, 2010. 111 Walker utilized SoundPLAN 7.0, an ISO 9613-2 compliant noise propagation modeling program. 112 The manufacturer refers to this adjustment factor as the "K" factor. 113 Email from Patricia Pilz, January 19, 2010. 114 Email from Patricia Pilz, January 26,2010. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I- March 12,2010 -40- 29 receivers (R-1, R-16, R-17, R-18, R-19, R-20, R-21, R-22, R-24, R-25, R-26, R-27, R-28, 2 R-29, R-30, R-33,.R-34, R-35 and R-36) would exceed the ambient hourly L50 noise 3 degradation limit of 36 dBA. Therefore, the certificate holder would be required to either alter 4 the layout of the turbines in the final layout to reduce noise levels to 36 dBA (or less) at each 5 residence or obtain waivers from the owners of all 19 noise sensitive properties allowing the 115 6 noise levels to rise above the 36 dBA limit. 7 Walker's noise study showed the noise radiating from SFS would be in compliance 8 with the DEQ ambient noise degradation rule at the remaining ten noise sensitive receivers 9 (R-12 through R15, R-23, R-31, R-32 and R-37 through R-39). After reviewing the results of 10 the SoundPLAN calculations, Standlee concluded, however, that turbine noise levels would 11 likely exceed the ambient noise degradation limit of36 dBA at receiver R-23. 116 Thus, 12 Standlee concluded that the certificate holder would be required to either alter the layout of 13 the turbines in the final layout to reduce noise levels to 36 dBA (or less) at this residence or 117 14 obtain a waiver from the owner ofthe property. 15 Condition 3 requires the certificate holder to operate the facility in accordance with all 16 applicable state laws and administrative rules. Condition 97 ensures that the final design 17 configuration ofSFS would comply with the noise control regulations. This condition 18 requires the certificate holder to provide information about the turbines selected and about the 19 final design layout to the Department before beginning construction. The condition requires 20 the certificate holder to provide a noise analysis based on that final design and to demonstrate 21 to the satisfaction of the Department that the facility would comply with the applicable noise 22 control regulations. 23 The Council has the authority to act in the place ofthe DEQ to enforce OAR 340-035- 24 0035(4)(a) and require the owner of an operatiny noise source to monitor and record the 18 25 statistical noise levels upon written notification. Condition 98 requires the certificate holder 26 to notify the Department of any complaints received about noise from the facility as well as 27 the actions taken to address them. In the event of a complaint regarding noise levels during 28 operation of SFS, the Council may require the certificate holder to verify that the facility is 29 operating in compliance with the noise control regulations. Conclusions ofLaw 30 For the reasons discussed above and subject to the conditions discussed herein, the 31 Council concludes that SFS would comply with the applicable noise control regulations in 32 OAR 340-035-0035 if Amendment #1 were approved. (b) Removal-Fill Law 33 The Oregon Removal-Fill Law (ORS 196.795 through 196.990) and regulations (OAR 34 141-085-0500 through 141-085-0785) adopted by DSL require a permit if 50 cubic yards or 115 The certificate holder would have the option to conduct measurements to determine the actual ambient L10 and L50 background levels rather than using an assumed background L50 ambient noise level of26 dBA. 116 Standlee determined that the predicted noise level at the receiver would be above 36 dBA if the total3-dBA "uncertainty" factor were included in the calculation. 117 As with the other 19 receivers where noise is expected to exceed the 36-dBA limit, the certificate holder would have the option to conduct measurements to determine the actual ambient L 10 and Lso background levels. 118 Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), p. 136. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 41 - DELGADO EXHIBIT 9 Page 45 of 59 more of material is removed, filled or altered within any "waters of the state" at the proposed 119 2 site. The Council must determine whether a permit is needed and should be issued. The 3 U.S. Army Corps of Engineers administers Section 404 of the Clean Water Act, which 4 regulates the discharge of fill into waters ofthe United States (including wetlands), and 5 Section 10 of the Rivers and Harbors Appropriation Act of 1899, which regulates placement 6 of fill in navigable waters. Federal law may require a Nationwide or Individual fill permit for 7 the proposed facility ifwaters of the United States are affected. A single application form (a 8 Joint Permit Application Form) is used to apply for both the State and federal permits. Findings of Fact 9 In the Final Order on the Application for the Shepherds Flat Wind Farm, the Council 120 1o found that a Removal/Fill Permit was not needed for construction of the SFWF . Those 11 findings are incorporated herein by this reference. The Council found that the SFWF 230-kV 121 12 transmission line would cross one State-jurisdictional water (Eightmile Creek). Impacts 13 would be avoided by placing transmission line support structures outside a 10-foot buffer 14 bordering the creek. No material would be removed from the creek channel or added as fill 15 within the creek channel. In the Final Order on Amendment #1 (SFWF), the Council found 16 that the division of the SFWF into three separate facilities within the previously-approved site 17 boundary of the SFWF would not affect any areas that were not previously addressed by the 122 18 delineation report on the wetlands and waters within the SFWF analysis area. 19 The proposed amendment would enlarge the site of SFS by approximately 4,517 acres. 20 Approximately 1,123 acres would be removed from the site boundary, and approximately 21 5,640 acres would be added. The areas that would be added to the SFS site by this amendment 22 include approximately 785 acres that lie within the previously-approved SFC site. This land 23 would be added to the SFS site as part of the alternate transmission corridor for SFS. This 123 24 SFC area was addressed by the delineation survey that was done for the SFWF. No State- 25 jurisdictional waters were found in this area. 26 Approximately 4,830 acres of new lands within the site of the proposed Saddle Butte 27 Wind Park would instead be added to SFS under this amendment. Aquatic Contracting 28 conducted a delineation survey for the lands that were proposed for the Saddle Butte Wind 124 29 Park. The Project Study Area (PSA) for the Saddle Butte delineation survey included eight 30 sub-areas. Portions of the new lands proposed to be added to SFS by this amendment are 31 included in seven ofthe eight sub-areas. Within the lands proposed to be added to SFS, 32 Aquatic Contracting found one wetland, described as "a very small (0.02 acre) perennial 125 33 palustrine emergent (PEM) seep located within a shallow tributary to Ely Canyon Creek." 119 ORS 196.800(14) defines "Waters of this state." The term includes wetlands and certain other water bodies. 12°Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), p. 138. 121 DSL has confirmed that Eightmile Creek is a State-jurisdictional waterway (letter from Jess Jordan, DSL, February 19, 2008, attached to email a from Jess Jordan, March 4, 2008). 122 Final Order on Amendment #1 (SFWF), p. 62. 123 Mason, Bruce & Girard, Inc, Wetlands/Waters Delineation Report for Shepherds Flat Wind Farm Project, Gilliam and Morrow Counties, Oregon (June 8, 2007), Figure 1. 124 Aquatic Contracting, Wetland and Waters Delineation Report, Saddle Butte Wind Park, Gilliam and Morrow Counties, Oregon (August 30, 2009), Request for Amendment #1, Appendix 3. 125 Wetland and Waters Delineation Report, Saddle Butte Wind Park, Gilliam and Morrow Counties, Oregon (August 30, 2009), p. 11. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 -42- DELGADO EXHIBIT 9 Page 46 of 59 DSL has concurred that the wetland is a State1urisdictional water.126 The certificate holder 2 classified the wetland as Category 1 habitat.12 The wetland lies approximately 500 feet from 3 a County road and at least 1,650 feet from the nearest potential construction 4 disturbance. 128 Aquatic Contracting found seven "highly ephemeral drainages" within the new 5 lands proposed to be added to SFS.129 DSL has concurred that the ephemeral waterways that 6 were identified in the Saddle Butte delineation report are not State-jurisdictional.130 In 7 addition, portions of Fourmile Canyon lie within the previously-approved site boundary. 8 Fourmile Canyon was previously identified as an eRhemeral waterway.131 DSL has concurred 2 9 that Fourmile Canyon is not a jurisdictional water.1 10 The amendment would add approximately 8.8 acres within the proposed alternate 11 transmission corridor between SFC and BPA's new Slatt substation and approximately 16.2 12 acres within the proposed alternate transmission corridor crossing Eightmile Canyon (a State 13 jurisdictional waterway). Condition 72 ensures that the certificate holder would avoid impacts 14 to Eightmile Creek. 15 DSL has reviewed the amendment request and the three delineation reports that cover 16 the areas ofthe three Shepherds Flat projects.133 DSL has confirmed that, ifthe :eroject areas 17 are covered by the three delineations, no further information would be needed.1 4 If 18 construction would occur in any areas outside the previously-surveyed areas, the delineation 19 might need to be amended.135 The certificate holder has agreed to conduct a delineation 20 survey before beginning construction for areas not covered by earlier surveys.136 In Revision 21 16, the Council adopts new Condition 103 that would require a preconstruction survey for 22 potential waters of the state in areas not previously investigated and avoidance of impact on 23 any jurisdictional waters that are found. Conclusions ofLaw 24 For the reasons discussed above, the Council concludes that no Removal/Fill Permit 25 would be required for SFS if Amendment #1 were approved. (c) Water Rights 26 Under ORS Chapters 537 and 540 and OAR Chapter 690, OWRD administers water 27 rights for appropriation and use of the water resources of the state. Under OAR 345-022- 126 Letter from Lynne McAllister, DSL, November 9, 2009 (attached to email from Patricia Pilz, November 11, 2009). 127 Request for Amendment #1, Appendix 1, p. 4. 128 Request for Amendment # 1, Appendix 1, pp. 5-6. 129 The certificate holder provided a map showing the locations ofthe ephemeral drainages within the proposed SFS site boundary (email from Patricia Pilz, December 30, 2009). 130 Letter from Lynne McAllister, DSL, November 9, 2009 (attached to email from Patricia Pilz, November 11, 2009). 131 Mason, Bruce & Girard, Inc, Wetlands/Waters Delineation Report for Shepherds Flat Wind Farm Project, Gilliam and Morrow Counties, Oregon (June 8, 2007), pp. 16-18. 132 Email from Jess Jordan, DSL, March 4, 2008. 133 The certificate holder provided a map showing the three project areas and the three delineation study areas (email from Patricia Pilz, January 14, 2010). · 134 Email from Sarah Kelly, DSL, January 20, 2010. 135 Email from Sarah Kelly, DSL, November 30, 2009. 136 Email from Patricia Pilz, January 2, 2010. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 43- DELGADO EXHIBIT 9 Page 47 of 59 0000(1), the Council must determine whether SFS would comply with these statutes and 2 administrative rules. Findings of Fact 3 In the Final Order on Amendment #I (SFWF), the Council found that the certificate 4 holder would not need to obtain a new water right for the water needed by the SFS facility 137 5 during construction or operation. The Council found that up to 26,400,000 gallons of water 6 would be needed for construction of SFS, assuming construction of 120 wind turbines. The 7 certificate holder would obtain construction water from the City of Arlington or alternatively 8 from a "service area" that would be permitted, constructed and operated by third-party 138 9 contractors. During operation, water would be supplied from an on-site well located at the 10 SFS field workshop. Condition 78 ensures that less than 5,000 gallons of water per day would 139 11 be taken from the on-site well for operational uses. 12 The certificate holder estimates that up to 25,520,000 gallons of water would be 13 needed for construction of SFS, based on the maximum number of turbines that would be 14 authorized under this amendment. 140 The possible sources ofthis water would be the same as 15 previously considered by the Council in the Final Order on Amendment #I (SFWF). The 16 proposed amendment would not change the water use during operation. The Council finds 17 that the certificate holder would not need to obtain any new water rights for the facility as a 18 result of the changes requested by this amendment. Conclusions of Law 19 Based on the findings discussed above, the Council concludes that SFS would comply 20 with applicable regulations pertaining to water rights if Amendment #1 were approved. (d) Public Health aud Safety 21 Under ORS 469.310, the Council is charged with ensuring that the "siting, 22 construction and operation of energy facilities shall be accomplished in a manner consistent 23 with protection of the public health and safety .... " State law further provides that "the site 24 certificate shall contain conditions for the protection of the public health and safety .... " ORS 25 469.401(2). Findings ofFact 26 We discuss the Council's Public Health and Safety Standards for wind energy 27 facilities above at page 24. In this section, we discuss the issues of fire protection, magnetic 28 fields and coordination with the Oregon Public Utility Commission and the Boardman 29 Military Operating Area. 137 Final Order on Amendment #1 (SFWF), pp. 62-63. 138 Each service area would include a portable concrete batch plant, a refueling station and a water well (email from Patricia Pilz, July 12, 2009). 139 ORS 537.545 provides a water right exemption for industrial and commercial uses of up to 5,000 gallons per day. The statute was amended in 2009 to require the owner of land on which an exempt well is drilled to provide a map to WRD showing the exact location of the well and to file the exempt water use with WRD for recording with submittal of a fee. 140 Email from Patricia Pilz, December 16, 2009. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 -44- DELGADO EXHIBIT 9 Page 48 of 59 A. Fire Protection In the Final Order on Amendment #I (SFWF), the Council made findings and adopted 2 conditions regarding fire prevention and response for SFS. 141 Those findings are incorporated 3 herein by this reference. The proposed amendment would expand the facility site to allow for 4 a larger micrositing area and an optional transmission line route for a 230-kV transmission 5 line. The changes requested by the amendment would not result in new fire risks that would 6 be different from the types of risk already considered by the Council. The site certificate 7 includes conditions that address fire protection and response (Conditions 53, 54, 55, 56, 58 8 and·60), and the Council finds that no new fire protection conditions are necessary. B. Magnetic Fields 9 Electric transmission lines create both electric and magnetic fields. The electric fields 10 associated with the proposed transmission lines are addressed above at page 26. The 11 certificate holder proposes to construct aboveground 230-kV lines and aboveground, single or 142 12 double-circuit, 34.5-kV collector lines as described in the amendment request. In the Final 13 Order on the Application for the Shepherds Flat Wind Farm, the Council made findings 14 : regarding the mafnetic fields that could be produced by these transmission line 14 15 configurations. Those findings are incorporated herein by this reference. The Final Order 16 includes references to the scientific literature on the biological effects of exposure to electric 17 and magnetic fields. The Council has not found sufficient information upon which to set 144 18 health-based limits for exposure to magnetic fields. Nevertheless, the Council has 19 encouraged applicants to implement low-cost measures to reduce or manage public exposure 20 to magnetic fields from transmission lines under the Council's jurisdiction. Condition 81 21 requires the certificate holder to take reasonable steps to reduce or manage human exposure to 22 electromagnetic fields, including specific measures listed in the condition. C. Coordination with the PUC 23 The Oregon Public Utility Commission Safety and Reliability Section (PUC) has 24 requested that the Council ensure that certificate holders coordinate with PUC staff on the 25 design and specifications of electrical transmission lines and the natural gas pipelines. The 26 PUC has explained that others in the past have made inadvertent, but costly, mistakes in the 27 design and specifications of power lines and pipelines that could have easily been corrected 28 early if the developer had consulted with the PUC staff responsible for the safety codes and 29 standards. Condition 82 requires the certificate holder to coordinate the design of electric 30 transmission lines with the PUC. D. Boardman Military Operating Area 31 In the Final Order on the Application for the Shepherds Flat Wind Farm, the Council 32 made findings regarding the Boardman Military Operating Area (BMOA), which lies to the 33 east ofthe SFS site boundary.145 Those findings are incorporated herein by this reference. The 141 Final Order on Amendment #1 (SFWF), p. 63 (incorporating findings from the Final Order on the Application (July 25, 2008), p. 139). 142 Request for Amendment # 1, Section IV, p. 1. 143 Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), pp. 139-141. 144 A recent review of the scientific literature confirmed the Council's earlier findings (Golder Associates, EMF Report, November 23, 2009). 145 Final Order on the Application for the Shepherds Flat Wind Farm (July 25, 2008), p. 141. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1 -March 12, 2010 - 45- DELGADO EXHIBIT 9 Page 49 of 59 certificate holder has agreed to provide the proposed final project layout to the Navy before 2 construction and to work with the Navy to accommodate the Navy's interest in safe aviation 146 3 training routes, which may include adjusting turbine locations where feasible. Conclusions ofLaw 4 Based on the findings discussed above and subject to the site certificate conditions 5 discussed herein, the Council concludes that SFS would comply with requirements to protect 6 public health and safety if Amendment # 1 were approved. 2. Requirements That Are Not Under Council Jurisdiction (a) Federally-Delegated Programs 7 Under ORS 469.503(3), the Council does not have jurisdiction for determining 8 compliance with statutes and rules for which the federal government has delegated the 9 decision on compliance to a state agency other than the Council. Nevertheless, the Council 10 may rely on the determinations of compliance and the conditions in the federally-delegated 11 permits issued by these state agencies in deciding whether the proposed facility meets other 12 standards and requirements under its jurisdiction. (b) Requirements That Do Not Relate to Siting 13 Under ORS 469.401(4), the Council does not have authority to preempt the 14 jurisdiction of any state agency or local government over matters that are not included in and 15 governed by the site certificate or amended site certificate. Such matters include 16 design-specific construction or operating standards and practices that do not relate to siting. 17 Nevertheless, the Council may rely on the determinations of compliance and the conditions in 18 the permits issued by these state agencies and local governments in deciding whether the 19 facility meets other standards and requirements under its jurisdiction. VI. GENERAL APPLICATION OF CONDITIONS 20 The conditions referenced in this order include conditions that are specifically required 21 by OAR 345-027-0020 (Mandatory Conditions in Site Certificates), OAR 345-027-0023 (Site 22 Specific Conditions), OAR 345-027-0028 (Monitoring Conditions) or OAR Chapter 345, 23 Division 26 (Construction and Operation Rules for Facilities). The conditions referenced in 24 \ this order include conditions based on representations in the request for amendment and the 25 supporting record. The Council deems these representations to be binding commitments made 26 by the certificate holder. This order also includes conditions that the Council finds necessary 27 to ensure compliance with the siting standards of OAR Chapter 345, Divisions 22 and 24, or 28 to protect public health and safety. 29 In addition to all other conditions referenced or included in this order, the site 30 certificate holder is subject to all conditions and requirements contained in the rules of the 31 Council and in local ordinances and state law in effect on the date the amended site certificate 147 32 is executed. Under ORS 469.401(2), upon a clear showing of a significant threat to the 146 Email from Patricia Pilz, July 17, 2009. 147 With regard to land use, the applicable local criteria are those in effect on the date the certificate holder submitted the request for amendment. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 - 46- public health, safety or the environment that requires application of later-adopted laws or 2 rules, the Council may require compliance with such later-adopted laws or rules. 3 The Council recognizes that many specific tasks related to the design, construction, 4 operation and retirement of the facility will be undertaken by the certificate holder's agents or 5 contractors. Nevertheless, the certificate holder is responsible for ensuring that all agents and 6 contractors comply with all provisions of the site certificate. VII. GENERAL CONCLUSION 7 The proposed amendment would expand the facility site to allow a larger micrositing 8 area for wind turbines and other components and an optional transmission line route. The 9 amendment would reduce the maximum number ofturbines at the facility to 116 and would 10 reduce the facility's maximum peak generating capacity to 290 MW. The Council adopts 11 revisions to the site certificate as described in the section that follows. 12 Based on the findings and conclusions discussed above regarding the proposed 13 amendment, the Council makes the following findings: 14 1. The proposed Amendment #1 complies with the requirements ofthe Oregon 15 Energy Facility Siting statutes, ORS 469.300 to ORS 469.570 and 469.590 to 16 469.619. 17 2. The proposed Amendment #1 complies with the applicable standards adopted by 18 the Council pursuant to ORS 469.501. 19 3. The proposed Amendment #1 complies with all other Oregon statutes and 20 administrative rules applicable to the amendment of the site certificate that are 21 within the Council's jurisdiction. 22 Accordingly, the Council finds that the facility complies with the General Standard of 23 Review (OAR 345-022-0000). The Council concludes, based on a preponderance of the 24 evidence on the record, that the site certificate may be amended as requested by the certificate 25 holder, subject to the revisions recommended by the Department and set forth below. 1. The Department's Recommended Revisions 26 New text proposed by the Department is shown with a single underline. New text 27 proposed by the certificate holder with concurrence by the Department is shown with a double 28 underline. Text proposed by the certificate holder but not recommended by the Department is 148 29 not shown. Deletions are shown with a strikethrough. The parenthetical references in 30 square brackets follow standard practice and provide a historical reference of when changes 31 were made to the site certificate. Page references are to the Site Certificate for Shepherds Flat 32 South (September 11, 2009). Revision 1 33 Page 1, lines 7-15: 34 The findings of fact, reasoning and conclusions of law underlying the terms and conditions of 35 this site certificate are set forth in the following documents, incorporated herein by this 148 The certificate holder proposed changes to the site certificate as shown in a red~line markup of the Site Certificate in the Request for Amendment #1, Section IV, following p. 3. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1 -March 12, 2010 -47- DELGADO EXHIBIT 9 Page 51 of 59 reference: (a) the Council's Final Order on the Application for the Shepherds Flat Wind Farm 2 issued on July 25, 2008, aad-(b) the Final Order on Amendment #1 for the Shepherds Flat 3 Wind Farm, and (c) the Final Order on Amendment #1. In interpreting this site certificate, any 4 ambiguity will be clarified by reference to the following, in order of priority: (I) this First 5 Amended Site Certificate, (2) the Final Order on Amendment #1, (~J) the Final Order on 6 Amendment #1 for the Shepherds Flat Wind Farm, (J1) the Final Order on the Application for 7 the Shepherds Flat Wind Farm and (42.) the record of the proceedings that led to the Final 8 Orders on the Application and Amendment #1 for the Shepherds Flat Wind Farm and to the 9 Final Order on Amendment #1. [Amendment# I (SFWF); Amendment #I] Revision 1 Explanation 1 o This revision adds a reference in the site certificate to the findings of fact, reasoning 11 and conclusions in support of the present amendment. The revision establishes the order of 12 priority in which the underlying documents should be considered in resolving any ambiguity. 13 The present amendment ofthe site certificate for SFS is designated as "Amendment #1" and 14 is distinguished from Amendment #1 for the Shepherds Flat Wind Farm, which is designated 15 as "Amendment #1 (SFWF)." Revision 2 16 Page 1, lines 16-22: 17 This site certificate is issued concurrently with site certificates for Shepherds Flat North and 18 Shepherds Flat Central, as described in the Final Order on Amendment # 1 for the Shepherds 19 Flat Wind Farm, each of the three relating to a p~·sically and geographically discrete portion 20 of the faeility authori:t~ed by the Site Certificate for the Shepherds Flat Wind Fann (July 25, 21 2008). Effecth'e upon eJ 24 For the purposes of the original site certificate for SFS, the deleted text explained that 25 Amendment #1 for the Shepherds Flat Wind Farm created SFS as a separate facility with its 26 own site certificate. Concurrently, Amendment #1 (SFWF) created SFN and SFC. Separate 27 site certificates for each of the new facilities were executed and became effective on 28 September 11, 2009, and superseded the previous site certificate for the SFWF, which has no 29 further force or effect. Because that effective date has occurred, the deleted text is no longer 30 necessary or appropriate for the SFS site certificate. Future amendments of this site certificate 31 may or may not occur concurrently with amendments of the site certificates for SFN and SFC. Revision 3 32 Page 1, line 33, through page 2, line 3: 33 3. This site certificate does not address, and is not binding with respect to, matters that were 34 not addressed in the Council's Final Orders on the Application and Amendment# I for the 35 Shepherds Flat Wind Farm and in the Final Order on Amendment #1. Such matters 36 include, but are not limited to: building code compliance, wage, hour and other labor 37 regulations, local government fees and charges and other design or operational issues that 38 do not relate to siting the facility (ORS 469.401(4)) and permits issued under statutes and 39 rules for which the decision on compliance has been delegated by the federal government 40 to a state agency other than the Council. 469.503(3). [Amendment #I (SFWF); Amendment 41 #I] SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 - 48- DELGADO EXHIBIT 9 Page 52 of 59 Revision 3 Explanation This revision adds the matters addressed in the Final Order on Amendment # 1 to the 2 scope of matters addressed in the site certificate. Revision 4 3 Page 2, lines 30-34: 4 The energy facility is an electric power generating facility with an average electric generating 5 capacity of up to ~97 megawatts and a peak generating capacity of not more than ~290 6 megawatts that produces power from wind energy. The facility consists of not more than 7 ~116 wind turbines. The energy facility is described further in the Final Order on 8 Amendment #I for the Shepherds Flat Wind Farm and in the Final Order on Amendment #I. 9 [Amendment #I (SFWF); Amendment #I] Revision 4 Explanation 10 This revision decreases the maximum number ofwind turbines and the maximum 11 generating capacity of the facility. The revision adds cross-references to descriptions of the 12 facility in the present order. Revision 5 13 Page 2, line 35, through page 3, line 8: 14 The facility includes the following related or supporting facilities described below and in 15 greater detail in the Final Order on Amendment #I for the Shepherds Flat Wind Farm and in 16 the Final Order on Amendment #I: 17 • Power Collection System 18 • Collector Substation 19 • Meteorological towers 20 • Field workshop 21 • Control system 22 • Access roads 23 • Additional construction areas 24 [Amendment #I (SFWF); Amendment #I] Revision 5 Explanation 25 The revision adds a cross-reference to descriptions ofthe related or supporting 26 facilities in the present order. Revision 6 27 Page 3, lines 10-14: 28 A power collection system operating at 34.5 kilovolts (kV) transports power from each turbine 29 to a collector substation. To the extent practicable, the collection system is installed 30 underground at a depth of at least three feet. Segments of the collector system are 31 aboveground. Aboveground segments are installed on single-pole, cross-arm structures-eF 32 undeFstrHRg en the 230 kV tFansfflissien liae s«ppert skHOti:H'es (desoFibed belew). 33 [Amendment #1] SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I- March 12, 2010 -49- DELGADO EXHIBIT 9 Page 53 of 59 Revision 6 Explanation This revision eliminates the option to understring collector lines on the 230-kV 2 transmission line structures. Revision 7 3 Page 3, lines 30-32: 4 The facility includes up to ~27 .5 miles of new roads that provide access to the turbine 5 strings. The access roads connect to graveled turbine turnouts at the base of each turbine. 6 [Amendment # 1 (SFWF): Amendment# 1] Revision 7 Explanation 7 This revision reduces the maximum combined length of new access roads to 27.5 8 miles. Revision 8 9 Page 10, lines 6-26: 10 26 The certificate holder shall construct a facility substantially as described in the site 11 certificate and may select turbines of any type, subject to the following restrictions and 12 compliance with all other site certificate conditions. Before beginning construction, the 13 certificate holder shall provide to the Department a description of the turbine types 14 selected for the facility demonstrating compliance with this condition. 15 (a) The total number of turbines at the facility must not exceed ~116 turbines. 16 (b) The combined peak generating capacity of the facility must not exceed J6G290 17 megawatts. 18 1 (c) The turbine hub height must not exceed 105 meters and the maximum blade tip 19 height must not exceed 150 meters. 20 (d) The minimum blade tip clearance must be 25 meters above ground. 21 (e) The maximum volume of concrete above three feet below grade in the turbine 22 foundations must not exceed 66 cubic yards. 23 (f) The maximum combined weight of metals in the tower (including ladders and 24 platforms) and nacelle must not exceed 393 U.S. tons per turbine. 25 (g) The certificate holder shall request an amendment of the site certificate to 26 increase the combined peak generating capacity of the facility beyond J6G290 27 megawatts, to increase the number of wind turbines to more than ~116 wind turbines 28 or to install wind turbines with a hub height greater than 105 meters, a blade tip height 29 greater than 150 meters or a blade tip clearance less than 25 meters above ground. 30 [Amendment #1 (SFWF):Amendment #1] Revision 8 Explanation 31 This revision decreases the maximum number of wind turbines and the maximum 32 generating capacity of the facility. Revision 9 33 Page II, lines 4-42: 34 30 Before beginning construction, the certificate holder shall submit to the State of Oregon 35 through the Council a bond or letter of credit in the amount described herein naming the 36 State of Oregon, acting by and through the Council, as beneficiary or payee. The initial 37 bond or letter of credit amount is, either $8.88+9 .1 08 million (Ji:Q 1st Quarter ~20 10 SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #I- March 12, 2010 -50- dollars), to be adjusted to the date of issuance as described in (b), or the amount 2 determined as described in (a). The certificate holder shall adjust the amount of the bond 3 or letter of credit on an annual basis thereafter as described in (b). 4 (a) The certificate holder may adjust the amount of the bond or letter of credit based 5 on the final design configuration of the facility and turbine types selected by applying 6 the unit costs and general costs illustrated in Table 3 in the Final Order on Amendment 7 # 1 for the Shepherds Flat Wind Farm and calculating the financial assurance amount as 8 described in that order, adjusted to the date of issuance as described in (b) and subject to 9 approval by the Department. 10 (b) The certificate holder shall adjust the amount of the bond or letter of credit, using 11 the following calculation and subject to approval by the Department: 12 (i) Adjust the Subtotal component of the bond or letter of credit amount 13 (expressed in 3rd Quarter 2009 dollars) to present value, using the U.S. Gross Domestic 14 Product Implicit Price Deflator, Chain-Weight, as published in the Oregon Department 15 of Administrative Services' "Oregon Economic and Revenue Forecast" or by any 16 successor agency (the "Index") and using the index value for 3rd Quarter 2009 dollars 17 and the quarterly index value for the date of issuance of the new bond or letter of credit. 18 If at any time the Index is no longer published, the Council shall select a comparable 19 calculation to adjust 3rd Quarter 2009 dollars to present value. 20 (ii) Add 1 percent of the adjusted Subtotal (i) for the adjusted performance bond 21 amount to determine the adjusted Gross Cost. 22 (iii) Add 10 percent of the adjusted Gross Cost (ii) for the adjusted administration 23 and project management costs and 10 percent of the adjusted Gross Cost (ii) for the 24 adjusted future developments contingency. 25 (iv) Add the adjusted Gross Cost (ii) to the sum of the percentages (iii) and round 26 the resulting total to the nearest $1,000 to determine the adjusted financial assurance 27 amount. 28 (c) The certificate holder shall use a form of bond or letter of credit approved by the 29 Council. 30 (d) The certificate holder shall use an issuer of the bond or letter of credit approved 31 by the Council. 32 (e) The certificate holder shall describe the status of the bond or letter of credit in the 33 annual report submitted to the Council under Condition 21. 34 (f) The bond or letter of credit shall not be subject to revocation or reduction before 35 retirement of the facility site. 36 [Amendment #1 (SFWF); Amendment #1] Revision 9 Explanation 37 This revision adjusts the initial financial assurance amount based on the changes 38 requested in Amendment# 1 and expresses the total in 1st Quarter 2010 dollars. Revision 10 39 Page 17, lines 1-3: 40 65 The certificate holder shall construct access roads with a finished width of 41 approximately 16 feet, a compacted base of native soil and a gravel surface to a depth of 42 four to s*ten inches. [Amendment #1 (SFWF): Amendment #1] SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12, 2010 -51 - DELGADO EXHIBIT 9 Page 55 of 59 Revision 10 Explanation This revision modifies Condition 65 to allow up to 10 inches of gravel on access 2 roads, as requested by the certificate holder. Revision 11 3 Page 18, lines 27-33: 4 79 The certificate holder shall install the 34.5-kV collector system underground to the 5 extent practicable. The certificate holder shall install underground lines at a minimum 6 depth of three feet. Based on geotechnical conditions or other engineering 7 considerations, the certificate holder may install segments of the collector system 8 aboveground on single-pole, cross-arm structures or understroog on the 230 kV 9 transmission liae Sl:lpport structl:lfes, but the total length of aboveground double-circuit 10 segments installed on single-pole structures must not exceed ..J:-9...93.2 miles. [Amendment 11 #1 (SFWF); Amendment #1] Revision 11 Explanation 12 This revision modifies Condition 79 to eliminate the option to understring collector 13 line on the 230-kV support structures. The revision modifies the limit on the length of 14 aboveground collector segments. Revision 12 15 Page 19, lines 21-24: 16 83 The certificate holder shall conduct wildlife monitoring as described in the Wildlife 17 Monitoring and Mitigation Plan that is incorporated in the Final Order on Amendment 18 #J for the Shepherds Flat 'Nind Farm as Attachment Sf.S-A and as amended from time 19 to time. [Amendment #1 (SFWF) Amendment #1] Revision 12 Explanation 20 This revision incorporates the revised Wildlife Monitoring and Mitigation Plan that is 21 attached to this order as Attachment A. The WMMP is revised to remove the WGS colony 22 assessment, which would instead be required under the WMMP for SFC under the companion 23 amendment request for SFC. Revision 13 24 Page 19, lines 30-36: 25 85 The certificate holder shall acquire the legal right to create, enhance, maintain and 26 protect a habitat mitigation area as long as the site certificate is in effect by means of an 27 outright purchase, conservation easement or similar conveyance and shall provide a copy 28 of the documentation to the Department. Within the habitat mitigation area, the 29 certificate holder shall improve the habitat quality as described in the Habitat Mitigation 30 Plan that is incorporated in the Final Order on Amendment #1 for the Shepherds Flat 31 WiHd Fann as Attachment SFS-C and as amended from time to time. [Amendment #1 32 (SFWF); Amendment # 1] Revision 13 Explanation 33 This revision incorporates the revised Habitat Mitigation Plan that is attached to this 34 order as Attachment C. The Habitat Mitigation Plan is revised to reflect the changes in 35 acreages of habitats potentially affected by construction of the facility. SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 -52- DELGADO EXHIBIT 9 Page 56 of 59 Revision 14 Page 19, line 37, through page 20, line 36: 2 86 The certificate holder shall avoid permanent and temporary disturbance to the areas 3 described in (a) through (g) and, during the times indicated, shall avoid construction 4 disturbance in the areas described in (htaR6 (i) through (k). The certificate holder shall 5 flag these areas for the duration of construction activities nearby and shall ensure that 6 construction personnel avoid disturbance of the areas. The avoidance areas are: 7 (a) All Category 1 and those areas of Category 2 habitat shown on the "ODFW-2" 8 Figures 1 through 12 in the Shepherds Flat Wind Farm Application. [Amendment #1 9 (SFWF)] 10 (b) Eight small areas of Category 3 shrub-steppe habitat as described in the Final 11 Order on Amendment # 1 for the Shepherds Flat Wind Farm, Section IV .4.(b )A. 12 [Amendment #1 (SFWF)] 13 (c) All seeps, riparian areas and vernal pools. 14 (d) All water sources for wildlife, including perennial and intermittent streams, stock 15 ponds and watering stations. 16 (e) All faces ofbluffs or rock outcroppings. 17 (f) All trees or other structures that contain active raptor nests. 18 (g) For the facility substation and field workshop, all Category 3 habitat. 19 [Amendment #1 (SFWF)] 20 (h) The area within 1,000 feet of Category 2 Washington ground squirrel (WGS) 21 haei-tat (as shown on "ODFW 2" Figure 8 in the Shepherds Flat Wind Farm Applieation) 22 d1:1riag the period in WHieh the SEJ:Hirrels are aetive. To determine whe:n the WGS are 23 aeth SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 -53- DELGADO EXHIBIT 9 Page 57 of 59 professional biologist to conduct pre-construction surveys for State-listed threatened, 2 endangered or sensitive wildlife species in these new areas within 1,000 feet of any area 3 potentially disturbed by facility construction. To determine whether WGS habitat exists 4 and to determine whether WGS are active, the biologist shall search for WGS in suitable 5 habitat using a two-survey protocol approved by the Oregon Department ofFish and 6 Wildlife (ODFW). The certificate holder shall submit the results of the survey to ODFW 7 and to the Department. If signs of WGS activity are observed, the certificate holder shall 8 flag the avoidance area and ensure that construction personnel avoid disturbance of the 9 area until the biologist has determined that the WGS are no longer active. 10 (k) Areas within a suitable buffer around confirmed populations .of Laurent's milk- 11 vetch or any other State-listed threatened or endangered plant species within the new 12 areas added to the site by Amendment #1 (excluding the area within the site boundaries 13 of Shepherds Flat North. Shepherds Flat Central and Shepherds Flat South as approved 14 on September 11, 2009). The certificate holder shall not install facility components or 15 cause temporary disturbance within these areas. The certificate holder shall hire a 16 qualified independent professional biologist to conduct pre-construction surveys for 17 State-listed threatened or endangered plant species in these new areas within 1,000 feet 18 of any area potentially disturbed by facility construction. The certificate holder shall 19 submit the results of the survey to the Department. 20 [Amendment #1] Revision 14 Explanation 21 This revision modifies Condition 86 to remove subsection (h), which applies to 22 previously-identified WGS habitat on land that would be removed from SFS by this 23 amendment and added to SFC under a companion amendment. The revision adds new 24 subsection Q), which requires a pre-construction survey for State-listed threatened, 25 endangered and sensitive wildlife species in the new lands added to SFS by this amendment, 26 as recommended by ODFW. In particular, the certificate-holder would use an ODFW- 27 approved protocol to search for WGS. Any Category 1 WGS habitat identified during the 28 survey would be avoided under subsection (a) ofthis condition. In addition, the area within a 29 1,000-foot buffer would be avoided during construction when WGS are active. The revision 30 adds new subsection (k) to ensure avoidance of impact to populations ofLaurent's milk-vetch 31 or other State-listed threatened or endangered plant species that are found during a pre- 32 construction survey. Revision 15 33 Page 21, lines 36-39: 34 92 The certificate holder shall impose and enforce construction and operation speed limits 35 of 5 miles per hour on roads within 1,000 feet of Category I or Category 2 WGS habitat 36 and 20 miles per hour on all other facility roads and shall ensure that all construction and 37 operations personnel are instructed on the importance of cautious driving practices while 38 on facility roads. [Amendment #1} Revision 15 Explanation 39 This revision modifies Condition 92 to include a lower speed limit near any Category 40 1 or Category 2 Washington ground squirrel habitat that is found within the new areas lying 41 outside previously-approved site boundaries. This would apply only ifWGS are found to be SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 -54- DELGADO EXHIBIT 9 Page 58 of 59 ······--···-----·· ...... ------ Revision 15 Page 21, lines 36~39: 2 92 The certificate holder shall impose and enforce construction and operation speed limits 3 of 5 miles per hour on roads within 1,000 feet ofCatggQ[,Yj_.QLCategory 2 WGS habitat 4 and 20 miles per hour on all other facility roads and shall ensure that all construction and 5 operations personnel are instructed on the ilrtportance of cautious driving practices while 6 on facility roads. [Amendment#l] Revision 15 Explanation 7 This revision modifies Condition 92 to include a lower speed limit near any Category 8 1 or Category 2 Washington ground squirrel habitat that is found within the new areas lying 9 outside previously-approved site boundaries. Tllis would apply only if WGS are found to be '10 active based on the precortstruction survey that is required under Condition 860), discussed 11 above. Revision 16 12 Page 24;/ollowing line 15: 13 103 Before beginning construction, the certificate holder shall determine. whether any ·14 construction disturbance would occur in locations not previously investigated for 15 potential jurisdiCtional waters as described in the Final Order on Amendment #1. The 16 certificate holder shall conduct pre-construction investigatiQns in these new areas within 17 1.000 feet of any area potentially disturbed by facility construction to determin~_:whether 18 any State-jurisdictional waters exist in those locations. The certificate holder shall 19 submit a written report on the pre-construction investigation to the Department of 20 Energy and to the Department of State Lands for approval before beginning construction. 21 and shall ensure that construction would have no impact on any jurisdictional water 22 identified in the report. [Amendment# 11 Revision 16 Explanation 23 This revision would add new Condition 103 to the site certificate to require pre., 24 construction survey of any areas not previously surveyed for waters of the state potentially 25 subject to the Removal/Fill law. If any jurisdictional waters are identified, the certificate 26 holder is required to take appropriate measures to avoid impacts on those ~eas. VIII. ORDER 27 The Coundl approves Amendment #1 and issues an amended site certificate, subject 28 to the terms and conditions set forth above. Issued this lih dayofMarch, 2010. THE OREGON ENERGY FACILITY SITING COUNCIL By:_ Robert Shiprac ·:Chair Oregon Energy Facility Siting Cotmcil SHEPHERDS FLAT SOUTH FINAL ORDER ON AMENDMENT# l - March 12, 2010 -55- DELGADO EXHIBIT 9 Page 59 of 59 ...... _ .. ······-···········------ Attachments Attachm~nt A: Wildlife Monitoring and Mitigation Plan Attachm~nt C: Habitat Mitigation Plan Attachment D: Amendment Request Comments and Department Responses Notice oUiw Right to Appeal You have the right to appeal this order to the Oregon Supreme Court pursuant to ORS' 469.403. To appeal you musJjile a petition for judicial review with the Supreme Court within 60 daysfrom the day this order was served onyou.lfthis order waspersonally delivered to you, the date ofservice is the date you reQeived this order. Ifthis order wqs mailed to you, the date ofservice is the date it was mailed, not the day you received#. Ifyou do notfile a petition for judicial review within the 60-day time period, you lose your right to appeal. SHEPHERDSFLATSOUTH FINAL ORDER ON AMENDMENT #1- March 12,2010 -56- DELGADO EXHIBIT 10 Page 1 of 2 Electric Rates Page 1 of2 HCfv1E lHF()RM/,,T iOf-i Columbia Basin BOARD OF D1RECTOR8 Electric Co-Op, Inc. PHOTO GALJ..J::qy ENEYCY CH!S!S t.OCJ..Ti:·:· Ul'JDf:':"RGROUND L.lt.JES (;r:,~FO!T GARO FAYMf:":"NTS A Cf:t-JTURY OF POVYF:R Electric Rates COi'-lT !\CT U~1 ELEl"".TR!C RATr:·s APPLIANCE F:N[:t..:(.;y USf: RATES EFFECTIVE OCTOBER 2013 JOB OF'f'ORTUNIT'ES ENE!XGY HEB/:..TE f:'()F~MS Residential Service: Service Charge: 1 Phase- $23.00/mo 3 Phase- $27.00imo Energy Charge /\II kWh@ $.07614/kWh Small General Service: Service Charge: 1 Phase- 823,00/mo 3 Phase .. S27 .00/mo !\!1 kWh@$ 08526/kwtl General Demand Service: Sarvice Charge: $85,00/mo Demand Charge: All k\JV@ $5_ '14/kW Energy Charge: All kWh @ $JJ4S84/kVVh Irrigation Pumping: Monthly Minimum Charge x 12 Months: First 15 Hi"- $7.81/HP ($11/.15) Next 35 HP- $5.2'/iHP ($184.45) Next !50 HF'- S3JJ5/HP ($457. 50) http://www.cbec.cc/Electric_Rates.php 9/24/2014 DELGADO EXHIBIT 10 Page 2 of 2 Electric Rates Page 2 of2 Over :?00 Hl0 .. $2.74/HP Encruy Charnc: Summer (May .. August) 1\11 k\1\lh ({]) $.02632/kWh Winter (September- A.. pril) All kWh@ $.034:!2/kWh Street & Security Lighting Monthly Charge: 250 W MV- $12 .. 95/ea '!0 W SV- $9 .. 60/ea 100 W SV- $lJ..50/ea 150 W SV- $10.00/ea 200 W SV- $1 0 .. 50/ea 250 W SV .. $1075/ea http://www.cbec.cc/Electric_Rates.php 9/24/2014 DELGADO EXHIBIT 11 Page 1 of 5 CAITHNESS SHEPHERDS FLAT, LLC July31,2012 VIA EMAIL and US MAIL Mr. Jerry Healy Manager Columbia Basin Electric Cooperative 171 W Linden Way Heppner, OR 97836 Re: Renewed Request for Station Service for Shepherds Flat Wind Resource Faeifities Located in Columbia Basin Eleetric Cooperative's Service Territory Dear Mr. Healy: Columbia Basin Electric Cooperative (the "Coop") \\'aS sent a copy of the letter of July 5, 2012, from Mr. Greg Sweek, Morrow County Assessor, to Mr. Vincent Giglio, Caithness Shepherds Flat, LLC, ("Cajt}mess''). In that letter, Mr. Sweek requested written confirmation from the Coop that Caithness has requested station service for Shepherds Flat Wind Project ("Project") facilities located in the Coop's service territory. His request was made in regard to a Strategic Investment Program Agreement executed between Caithness and Morrow County. For your convenience, a copy of Mr. Sweek's correspondence is attached. On Friday, July 27, you declined to provide that letter that Mr. Sweek has requested, stating that Caithness had never made its request for station service power in writing. To remove any ambiguity concerning this matter, Caithness hereby reiterates, in writing, its request that the Coop provide station service to Project facilities located within the Coop's service territory. As explained below, Caithness is willing to cooperate in any effort by the Coop to implement this written, renewed request. History•. The Project straddles the Oregon service territories of the Coop and PacifiCorp, dba "Pacific Power/' We understand these service territories to be "exclusive." The Project is divided into three components: Shepherds Flat North (for which the Project entity is North Hurlburt Wind, LLC), Shepherds Flat Central (for which the Project entity is South Hurlburt Wind, LLC) and Shepherds Flat South (for which the Project entity is Horseshoe Bend Wind, LLC.). Each Project component has its own maintenance building and control room. The maintenance building and control room for Shepherds Flat North and Shepherds Flat Central are located within Pacific Power's service territory. Caithness paid Pacific Power to extend distribution lines to these facilities, which are now being served at retail by Pacific Power. The maintenance building and control room for Shepherds Flat South are located within the Coop's CAITHNESS003261 DELGADO EXHIBIT 11 Page 2 of 5 service territory. Caithness paid the Coop to extend a distribution line to these facilities, which are now being served by the Coop. Horseshoe Bend Wind, LLC, is both a customer and a member of the Coop. All three Project components connect to the Bonneville Power Administration ("BPA") transmission system at a single point of interconnection in BPA's SJatt Substation, _which is located within Pacific Power's territory. At Slatt, 100 percent of Project output is delivered to BPA ~ia 230-kV transmission lines owned by the Project entities. Also at Slatt, station service power for aU three Project components is delivered to Caithness, as utility retail customer. From Slatt Substation, station service power is accepted into the Project via these same customer~ owned, 230~kV lines. In 2010, Caithness separately requested station senice power from the Coop and from Pacific Power. We requested advice from each utility about which one was authorized to provide station service power to each of the three Project components. You and I met with BPA staff to discuss our request to the Coop. You told Caithness that you believed the Coop should serve some portion of the Project's total station service load. However, Pacific Power informed us that it had the right to serve lOO percent of the total station service load (all three Project components) because utility delivery of all station senice power was to be made within its exclusive service territory at Slatt. You told us that the Coop would likely challenge Pacific Power's claim before the Oregon Public Utilities Commission (~'PUC"), which has jurisdiction under Oregon law to resolve such territorial disputes. Caithness made it clear to both utilities that it, as customer, did not want to get into the middle of any dispute over service territories, When the Coop failed to seek a ruling :from the PUC, Caithness concluded that the Coop had decided not to challenge Pacific Power's assertion that 100 percent of the Projecfs station service load was within its exclusive service territory. Also, you had told us that the Coop did not even have a retail electric rate for service to the Project as a BPA ''tier 2" load and could not develop such a rate until BPA determined its applicable wholesale rate a year or more later. The Coop was thus unable to satisfy our request for station service power. BPA was pressing us to conclude arrangements for station service so that we could complete our interconnection to the BPA system 88 one of m}Tiad arrangements yet to be worked out as we brought a $2 billion Project on line. Because of your decision not to seek a PUC ruling, we signed the contract tendered to us by Pacific Power for station service power at its published rate. Implementation of Caithness' Renewed Request. It appears to us that the Coop may be ha\ing second thoughts about its failure to press before the PUC a claim of territorial right to serve some of the Project's station service load. Presently, station service power is being made available to Caithness at Slatt Substation, using facilities of BPA. Pacific Power has installed metering allowing it to measure its power deliveries. For the Coop to serve a part of this load, it would simply need to designate Slatt Substation as a new point of delivery under its existing BPA transmission agreement and work out some arrangement with Pacific Power to divide up station sm·icc power deliveries, using the metering already in place. No construction would be required for the Coop to serve part of this load; it would merely be a matter of bookkeeping between the two utilities. As Caithness understands it, this outcome could result either from a consensual agreement with Pacific Power under ORS 758.410 or through a PUC order declaring that some portion of the Pr~iect's station service load is within the Coop's service territory. 2 CAITHNESS003262 DELGADO EXHIBIT 11 Page 3 of 5 Caithness reiterates that it does not want to get into the middle of any disagreement over service territories between the Coop and Pacific Power. Simply inform us how you intend to proceed. If you initiate legal proceedings, Caithness would likely intervene to protect its interests. but would not take a position on the service-territory issue. If the Coop has subsequently developed a rate applicable for senice to a load such as ours, please provide us with a copy. If not, please infonn Caithness about the commercially reasonable rate the Coop would intend to apply for station service power. If the Coop's rate were higher than Pacific Power•s Schedule 43, that could of course affect the position we took if the PUC decided to consider relative rate levels in any proceeding you decide to initiate. Again, Caithness will cooperate in any action the Coop chooses to take, while maintaining its neutrality between the two utilities on the service territory issue. I am copying Paci:fiCotp on this letter in the interests of preserving Caithness' neutrality. Please acknowledge to Mr. Sweek your receipt ofthis written request without delay. t:±:r.Sincerely, Vice President ce. Mr. Greg Sweek, Morrow County Assessor Ms. Michelle Mishoe, PaeifiCorp 3 CAITHNESS003263 DELGADO EXHIBIT 11 Page 4 of 5 CotumBJII tCTIIIC (ooPtJJIITJVt, Inc. 171 N. LINDeN WAY • P.O. BOX 398 • HEPPNER, OREGON 97836-0398 Telephone (541) 676-9146 • fax (541) 676-5159 Condon Telephone (541) 384-2023 [email protected] [email protected] [email protected] August 21, 2012 [email protected] [email protected] Caithness Shepherds Flat, .llC Derrel Grant Vice President 565 5th Avenue, 29th floor New York, New York 10017 Dear Mr. Grant: Thank you for your letter dated July 31, 2012, regarding the provision of station service for the Shepherds Flat Wind Facilities (Project) owned by Caithness Shepherds Flat lLC (Caithness) and located in Columbia Basin Electric Cooperative, Jnc/s (CBEC) service territory. While much of the information in your letter is correct, I unfortunately cannot agree with some of the statements regarding the request to provide station service contained in the letter. Dating back over 10 years when I first met Patricia Piltz, and continuing up to the present time (including a meeting with you in Arlington, Oregon, and at SPA's office in Vancouver, Washington), I have always pressed the issue of station service for that portion ofthe Project located in CBEC service territory. You are correct that I declined to provide Mr. Sweek with a letter stating that Caithness had made a request for station service power at the Project. Although you, Pat, and I have discussed the issue of station service for the Project many times over the past 10years, CBEC has never received a request for station service (written or verbal) until your letter dated July 27, 2012. Nevertheless, CBEC does appreciate receiving Caithness' recent request for station service at the Project and we have proceeded expeditiously on that request in hopes that all ofthe matters involving Caithness' and Morrow County can be resolved quickly. l have been involved in the following activities regarding station service to the Project. Over the past few weeks, CBEC has been working with PacifiCorp trying to come to a "utility-to-utility" solution to the station service issue. I remain hopeful that PacifiCorp and CBEC will come to agreement in the near future, but this issue may need your input. I have also been working with CBEC's transmission account executive at BPA on CBEC's request to BPA for two new points of delivery for your projects. The first one, Shepherds Flat South, should be a simple request. Shepherds Flat Central is a little more challenging. l will need some help from someone in your organization to identify the location of the turbines in the Shepherds Flat Central. project. If someone could provide me with a map of these turbine locations with an underlining layer of township, range and section I will.be able to allocate load for this project between PacifiCorp OWNED AND OPERATED BY THOSE WE SERVE IN MORROW, UMAT!ltA. WHEELER. SHERMAN, AND GILLIAM COUNTIES. CAITHNESS003264 DELGADO EXHIBIT 11 Page 5 of 5 Caithness Shepherds Flat, llC Oerrel Grant August 21, 2012 Page2 and CBEC. When I getconcurrence with PadfiCorp on the allocation percentage I will make final request for service from BPA. Please be advised that CBEC commissioned a rate study following SPA's implementation of their new rates on October 1, 2011. The rate cons.ultant has completed the study and CBEC has passed on these higher rates to the majority of our membership. However, we are still working on miscellaneous rate schedules that we presently do not have billing activity on, i.e., idle services, seasonal, minimum use accounts, and new large loads like Caithness. The only material component to a new large load rate will be BPAcost of power. CBEC wants to make sure it is passing on the BPA power cost charges in manner that ls equitable to both the member receiving service and the Cooperative as a whole. CBEC will continue to work with PacifiCorp and Caithness to resolve the issue of station service as quickly as possible. I believe it would expedite resolution of the outstanding issues if Caithness contacted their representative at PacifiCorp and requested that the relationship between Caithness and PacifiCorp be modified to accommodate CBEC providing the station service to the Project as outlined in this letter. Kindly let me know who I should work with on your side and PacifiCorp's to have the correct information regarding turbine numbers to. be provided to BPA. Once the matters involving BPA are addressed, CBEC will have the appropriate documentation prepared for memorializing the provision of station service by CBEC to the Project. In the interim, please do not hesitate to contact me should you have any questions or desire further information. cc. Mr. Greg Sweek, Morrow County Assessor Ms. Michelle Mishoe, PacificCorp CAITHNESS003265 CERTIFICATE OF FILING AND SERVICE Docket No. UM 1670 I hereby certify that on the date given below the original and one true and correct copy of the foregoing DECLARATION OF JEFFREY DELGADO IN SUPPORT OF CAITHNESS DEFENDANTS’ MOTION FOR SUMMARY DETERMINATION were sent by email and first-class mail to: Public Utility Commission of Oregon 3930 Fairview Industrial Drive SE PO Box 1088 Salem, OR 97308-1088 E-mail: [email protected] On the same date, a true and correct copy of the foregoing document was sent to the following parties by electronic mail as indicated on the attached Service List. DATED this 6th day of October, 2014. DAVIS WRIGHT TREMAINE LLP By: /s/ Derek D. Green John A. Cameron, OSB #92873 Derek D. Green, OSB #042960 1300 SW Fifth Avenue, Suite 2400 Portland OR 97201 Tel: 503-241-2300 Fax: 503-778-5299 Email: [email protected] Email: [email protected] Of Attorneys for Defendants North Hurlburt Wind, LLC, South Hurlburt Wind, LLC, Horseshoe Bend Wind, LLC and Caithness Shepherds Flat, LLC Page 28 – DECL. OF JEFFREY DELGADO ISO CAITHNESS’ SUM. DETERMINATION MOTION DAVIS WRIGHT TREMAINE LLP DWT 24527873v3 0084118-000016 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main (503) 778-5299 fax UM 1670 SERVICE LIST W = waives paper service W W Thomas Wolff, Manager Dustin Till, Senior Counsel COLUMBIA BASIN ELECTRIC PACIFIC POWER COOPERATIVE, INC. 825 NE Multnomah, Suite 1800 P O Box 398 Portland, OR 97232 Heppner, OR 97836-0398 Email: [email protected] Email: [email protected] W W Charles N. Fadeley Oregon Dockets Attorney at Law Pacificorp, dba Pacific Power P. O. Box 1408 825 NE Multnomah St., Suite 2000 Sisters, OR 97759 Portland, OR 97232 Email: [email protected] Email: [email protected] W W Raymond S. Kindley Ted Case, Executive Director KINDLEY LAW, PC OREGON RURAL ELECTRIC P O Box 569 COOPERATIVE ASSOCIATION West Linn, OR 97068 698 12th Street SE, Suite 210 Email: [email protected] Salem, OR 97301 Email: [email protected] W W Thomas M. Grim Steve Eldrige Tommy A. Brooks Umatilla Electric Cooperative Assn. CABLE HUSTON P O Box 1148 1001 SW Fifth Ave., Suite 2000 Hermiston, OR 97838 Portland, OR 97204-1136 Email: [email protected] Email: [email protected] [email protected] Page 29 – DECL. OF JEFFREY DELGADO ISO CAITHNESS’ SUM. DETERMINATION MOTION DAVIS WRIGHT TREMAINE LLP DWT 24527873v3 0084118-000016 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main (503) 778-5299 fax BEFORE THE PUBLIC UTILITY COMMISION OF OREGON UM 1670 COLUMBIA BASIN ELECTRIC COOPERATIVE, INC., Complainant, DECLARATION OF DEREK GREEN IN SUPPORT OF CAITHNESS v. DEFENDANTS’ MOTION FOR SUMMARY DETERMINATION PACIFICORP, dba Pacific Power, NORTH HURLBURT WIND, LLC, SOUTH HURLBURT WIND, LLC, HORSESHOE BEND WIND, LLC, and CAITHNESS SHEPHERDS FLAT, LLC, Defendants. I, Derek D. Green, under penalty of perjury, declare as follows: 1. I am one of the attorneys representing defendants North Hurlburt Wind, LLC, South Hurlburt Wind, LLC, Horseshoe Bend Wind, LLC and Caithness Shepherds Flat, LLC (the “Caithness Defendants”) in this matter. 2. This declaration is filed in support of the Motion for Summary Determination of the Caithness Defendants. 3. Attached hereto as Green Exhibit 1 is a copied excerpt from the 1985 legislative history of Oregon House Bill 2202 (63rd Assembly), obtained by this office from the Secretary of State Archives. 4. Attached hereto as Green Exhibit 2 are copies of public notices from Bonneville Power Administration and the Oregon Department of Energy in 2006 regarding Lifeline Page 1 – DECLARATION OF DEREK D. GREEN IN SUPPORT OF MOTION FOR SUMMARY DETERMINATION DAVIS WRIGHT TREMAINE LLP DWT 24973935v1 0084118-000016 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main (503) 778-5299 fax Development Group’s wind energy development notice of intent to develop a wind energy project and proposed interconnection adjacent to BPA’s Slatt switching station. Both documents are publicly available on, and were downloaded from, the BPA’s public website. DATED this 6th day of October, 2014. /s/ Derek D. Green Derek D. Green Page 2 – DECLARATION OF DEREK D. GREEN IN SUPPORT OF MOTION FOR SUMMARY DETERMINATION DAVIS WRIGHT TREMAINE LLP DWT 24973935v1 0084118-000016 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main (503) 778-5299 fax GREEN EXHIBIT 1 Page 1 of 2 Bills considered: HB 2202, 2838, 2702, 3021 SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES June 06, 1985 Hearing Room B Tapes 141-142 State Capitol MEMBERS PRESENT: SEN. BILL BRADBURY, CHAIR SEN. ROP MONROE, VICE CHAIR SEN. JOHN BRENNEMAN SEN. JOYCE COHEN SEN. L.B. DAY SEN. JEANNETTE HAMBY SEN. MARGIE HENDRIKSEN STAFF PRESENT: JEFF JOHNSON, ADMINISTRATOR MARIA LUISA MEZA, ASSISTANT WITNESSES: REP. VERNER ANDERSON Dist. 45 ( EDWARD J. STIPKALA CPEX Pacific, Inc. GENE MAUDLIN Public Utility Commissioner DENISE McPHAIL Portland General Electric ALAN WILLIS Boise cascade PHILLIP FELL Metropolitan Service Dist. REP. WAYNE FAWBUSH Dist. 56 ~ -····- (~-~·-14.~IDE A 005 SENATOR BRADBURY called the hearing to order at 8:00 am. HB 2202 - RelatJ:.ng_j:2_E~ Util~!:i~· --020 REPRESENTATIVE ANDERSON came before the committee and explained the background of the bill(Exhibit A). He stated that he and REPRESENTATIVE TOM THROOP worked together on this bill. Original intent of the law was the. allowance of small head hydro to GREEN EXHIBIT 1 Page 2 of 2 Page 2 Senate Committee on Energy and Natural Resources June 06, 1985 20 customer to be served by the facility. The intent was towards residential customers. Since that time, it was discovered by the utilities that they could serve industrial customers under the terms of the law. The bill has been re-drafted to grandfather what has gone on before to allow one industrial customer. It exempts some of the processes they felt needed a. lift, in regards to solar and wind. It exempts some of the bio-gas, waste heat and geothermal that are used for non-electrical purposes. 083 SENATOR DAY asked if Representative Anderson had seen the proposed amendments and if he was in agreement with them (Exhibit B). REPRESENTATIVE ANDERSON stated that he felt that the amendments were onerous. 096 SENATOR BRADBURY asked if the bill . was attempting to address the concern of pirating industrial customers from an existing utility by people involved in co-generation or in the development of other resources. REPRESENTATIVE ANDERSON responded that this was the basic concern. 126 SENATOR BRADBURY expressed his concern for the issue of incentives provided for co-generation. He questioned how this bill would affect co-generation. -REPRESENTATIVE ANDERSON responded that the limitation was that the excess fuel would go unregulated or regulated, depending upon the circumstances, to an industrial-owned utility or a publicly-owned utility. 151 SENATOR HANLON, District 1, introduced EDWARD J. STIPKALA, Vice-President and manager of CPEX PACIFIC, INC •• STIPKALA submitted to the committee a handout (Exhibit C) which stresses the company's concerns. 191 SENATOR . DAY. asked how.. ijB 2ao~ poses ... an impediment. STIPKALA responded that part of the language of subsection 3, page 2, line 11, does allow a corporation to service their own needs without the classification of a utility. SENATOR BRADBURY stated that he did not see how subsection 3 took care of the concern. This section allows for third party financing of acquisition or development by a utility customer. 246 GENE MAUDLIN, Public Utility Commissioner, came before the committee to address the concern expressed by Mr. Stipkala. MAUDLIN stated that there was nothing in the present law or in the amendments that prohibits a person from serving its own load under any manner they see fit. The amendment referred to, on third party financing, means that if somebody else finances a project, it isn't covered either. Existing law covers the person who wants to do everything themselves. This bill ensures third party financing. ( MR. MAUDLIN then testified that it was possible to get power from BC HYDRO, a Canadian state-owned corporation, into this territory by using mostly Bonneville Power lines. They are anxious to sell the surplus power; it could do so to someone down here who can then use GREEN EXHIBIT 2 Page 1 of 5 To: People Interested in the Proposed Shepherds Flat Wind Farm Project From: Cathy Van Hom, Oregon Department of Energy Date: June 27, 2006 Subject: Notice oflntent for Wind Facility Introduction On June 27, 2006, the Oregon Department of Energy (Department) received a Notice oflntent from Lifeline Development Group, LLC, to apply to build a wind generation facility between Arlington and Willow Creek on about 32,100 acres of mostly privately owned farm land in Gilliam and Morrow counties. The facility would be called the Shepherds Flat Wind Farm (Project). It would include up to 300 wind turbines with a total nominal generating capacity of up to 750 megawatts (MW) of electricity. A Notice oflntent signals a company's intent to file an application to build an energy facility in the near future. The application is for a permit called a "site certificate" from the Oregon Energy Facility Siting Council (Siting Council), a seven-member citizen council appointed by the governor. The site certificate application is reviewed under a consolidated state process through which the Siting Council makes decisions on most state permits that otherwise would be decided separately. The Notice oflntent contains only preliminary information about the facility, its location, its conceptual design, and its potential impacts. The Department uses the notice to work with relev~;tnt government agencies and tribes to determine the appropriate regulations or specific concerns that an applicant must address in its application for a site certificate. It also uses the notice to gather public comments about the project early in the process. The Department then uses the agency, tribal and public comments to help us produce a document called a "project order," which details the information Lifeline must put into its application. Lifeline anticipates submitting an application in early fall 2006. Public Review of the Notice of Intent You can review a copy ofthe Notice oflntent at: • The Department's office in Salem at 625 Marion St. NE • The Arlington Public Library at 500 W. First St., Arlington, OR • The Boardman Library at 200 South Main St., Boardman, OR • On the web at http://egov.oregon.gov/ENERGY/SITING/announce.shtml Shepherds Flat NOI Public Notice June 27,2006 GREEN EXHIBIT 2 Page 2 of 5 Request for Public Comments and Information Meeting The Department requests written comments on the Notice oflntent by Monday, July 31, 2006. Written comments or questions can be submitted by regular mail, e-mail, or fax. The Department will also hold a public information meeting on Friday, July 28, 2006, where people can comment orally and ask questions. The public meeting will begin at 7 p.m. at the Arlington High School at 1200 Main Street in Arlington, Oregon. The Department will hold additional comment opportunities once it receives an application. At the July 28 meeting, the Department will: • Explain the state's review process and how the public can participate; • Hear public comments, questions and concerns on the proposed facility; and • Ask Lifeline to answer questions from the public. Description and Location of Proposed Facility The facility would be called the Shepherds Flat Wind Farm (Project). It would include up to 300 wind turbines with a total nominal generating capacity ofup to 750 megawatts (MW) of electricity. The Project would also include: • Two substations • An operations, maintenance and communications facility located on commercially zoned property • Up to 10 permanent meteorological towers • A 34.5-kilovolt (kV) power collection system linking each turbine to the next and the Project substations. The power collection system would largely be underground, but might be overhead in some locations. • Interconnection with a Bonneville Power Administration 500 kV transmission line in Gilliam County adjacent to BPA's Slatt switching station • A temporary concrete batch plant Application Process As noted above, the Siting Council will make the decision for the state about whether this facility will be built. The Department is a state agency that serves as staff to the Siting Council. The Siting Council's site certificate process is a consolidated permitting process that includes the review of applicable regulations of most other state agencies such as the Water Resources Department, Department ofEnvironmental Quality, and the Department of State Lands. The applicant has the ability to choose whether it will seek land use approvals from the local jurisdiction or from the Siting Council. The site certificate does not include federal permits or permits that the federal government has delegated to other state agencies, such as air quality permits delegated to the Department of Environmental Quality. Briefly, the steps in the site certificate application process are: • If the applicant moves beyond the Notice oflntent phase to file an Application for Site Certificate, the Department will notify adjacent property owners and any other members Shepherds Flat 2 NOI Public Notice June 27, 2006 GREEN EXHIBIT 2 Page 3 of 5 of the public who ask to be on our mailing list. The notification will invite public comments on the application and will say where members of the public can review a copy of the application. • After the Department considers comments from the public, state/local agencies, and tribes, we issue a Draft Proposed Order that either recommends approval or denial of the application. The Department will then issue notice of the Draft Proposed Order and will invite public comments on it. • The Department will schedule a public hearing (described in OAR 345-015-0220) on the Draft Proposed Order. Anyone can raise issues or objections to the Draft Proposed Order in writing or at this public hearing. The Department will issue notice ofthis hearing. Failure to comment in person or in writing on the record of the public hearing described in OAR 345-015-0220 precludes participation in the subsequent contested case and the right to appeal the Siting Council's final decision. • The Siting Council will hold a contested case hearing, which is a formal, legal hearing format. At the end of the contested case, the Siting Council will make its final decision on the application. Any person can request to participate in the contested case provided he or she commented on the record of the Draft Proposed Order. Land Use As part of its application review, the Siting Council considers land use issues. An applicant can choose to obtain land use approvals either through the local jurisdiction or through the Siting Council. In its Notice oflntent, Lifeline has indicated that it plans to pursue land use approvals from the Siting Council. Should Lifeline's plans change, and the company chooses to pursue land use approvals from the local jurisdiction, public comments on land use issues should be directed to the local land use process. To Comment or Request Further Information We realize that the energy facility siting process is new to most people. Please feel free to call the Department with any questions or comments about the proposed facility or the permitting process. The Department contact for this project is: Cathy Van Hom Oregon Department of Energy 625 Marion St. NE Salem, OR 97301 Phone: (503) 378-4041 Fax: 503-373-7806 E-mail: [email protected] Shepherds Flat 3 NOI Public Notice June 27, 2006 GREEN EXHIBIT 2 Page 4 of 5 Department of Energy Bonneville Power Administration P.O. Box491 Vancouver, Washington 98666-0491 TRANSMISSION BUSINESS LINE October 5, 2006 In reply refer to: Shepherd's Flat Wind Interconnection- TNP-CSB-2 To: People interested in BPA's interconnection ofthe Shepherd's Flat wind project Bonneville Power Administration has been asked by Lifeline Energy to interconnect up to 750 megawatts (MW) of electricity generated from their proposed Shepherd's Flat Wind Farm in Gilliam and Morrow Counties, Ore. to the Federal Columbia River Transmission System (FCRTS). As a federal agency, BPA must consider the environmental impacts of its decision to interconnect under the National Environmental Policy Act. The purpose of this letter is to describe the proposed interconnection process, invite you to a public meeting and explain how you may comment on the project or contact BPA with questions. Background Lifeline Energy has proposed the 750 MW Shepherds Flat Wind Farm in Gilliam and Morrow Counties, Ore. Lifeline would permit, build, own, and operate this wind project and its associated facilities, including a proposed transmission line that would be built between the wind project and the proposed interconnection to the FCRTS. Siting of the wind project is under .the jurisdiction of the Oregon Energy Facility Siting Council (EFSC), which is currently reviewing the project. Oregon EFSC held a public meeting on July 28, 2006 to seek public input concerning the wind project. BPA staff attended that meeting to discuss BPA's proposed role in interconnecting the project to the FCRTS. Proposal To interconnect the proposed Shepherd's Flat Wind Farm, BPA proposes to expand its existing Slatt substation yard in Gilliam County in 2008, adding a 230-kilovolt (kV) yard. Lifeline Energy would build two to three collector substations and its wind farm with associated 230-kV lines that would connect these collector substations to BPA's expanded Slatt substation. BPA does not propose to purchase any of the power produced by this wind project. Public Meeting BPA invites all interested parties to attend a public meeting to review BPA's proposed interconnection of Lifeline's proposed wind project. The meeting is on: Wednesday, Oct. 25,2006 6 p.m. - 8 p.m. Arlington Grade School 1400 Main Street Arlington, Ore. 97812 GREEN EXHIBIT 2 Page 5 of 5 2 Schedule This project is in the preliminary environmental review stages. BPA will take public comment on its proposed interconnection through Nov. 10, 2006. BPA will also monitor the Oregon EFSC Site Certificate process for the proposed wind project and comments raised in that process. If BPA determines that the decision to interconnect this project is consistent with BPA's Business Plan Environmental Impact Statement published in June 1995, BPA will prepare a Record of Decision (ROD) tiered to the BPA EIS and its ROD. A tiered ROD could be released sometime in 2007, depending on the EFSC schedule for consideration ofthe wind project. Construction of the proposed Shepherd's Flat Wind Farm could begin as early as 2008. How to Comment Comments will be accepted through Nov. 10, 2006. Comments can be submitted online at http://www.bpa.gov/comment; via e-mail to [email protected]; via mail to Bonneville Power Administration, Public Affairs Office- DKC-7, P.O. Box 14428, Portland OR 97293-4428; or by fax to (503) 230-3285. You also can call us toll free with your comments at (800) 622-4519. In your comments, please reference Shepherd's Flat Wind Interconnection. Please note that all comment letters will be posted on BPA's Web site at http:l!-www.bpa.gov/commentl. For More Information Ifyou have questions or would like more information about BPA's proposed interconnection of the wind project, please call us toll-free at (800) 622-4519. Additional information is posted on our Web site at http://www.transmission.bpa.gov/PlanPn~j/Windl. Information about EFSC's consideration of the wind project is available at: http://www.oregon.gov/ENERGYISI11NGireview.shtml. Thank you for your interest in this project. Sincerely, Is/ Page Andrews, Oct. 5, 2006 Page Andrews Project Manager Enclosed: Project Map CERTIFICATE OF FILING AND SERVICE Docket No. UM 1670 I hereby certify that on the date given below the original and one true and correct copy of the foregoing DECLARATION OF DEREK D. GREEN IN SUPPORT OF CAITHNESS DEFENDANTS’ MOTION FOR SUMMARY DETERMINATION were sent by email and first-class mail to: Public Utility Commission of Oregon 3930 Fairview Industrial Drive SE PO Box 1088 Salem, OR 97308-1088 E-mail: [email protected] On the same date, a true and correct copy of the foregoing document was sent to the following parties by electronic mail as indicated on the attached Service List. DATED this 6th day of October, 2014. DAVIS WRIGHT TREMAINE LLP By: /s/ Derek D. Green John A. Cameron, OSB #92873 Derek D. Green, OSB #042960 1300 SW Fifth Avenue, Suite 2400 Portland OR 97201 Tel: 503-241-2300 Fax: 503-778-5299 Email: [email protected] Email: [email protected] Of Attorneys for Defendants North Hurlburt Wind, LLC, South Hurlburt Wind, LLC, Horseshoe Bend Wind, LLC and Caithness Shepherds Flat, LLC Page 1 – CERTIFICATE OF SERVICE DAVIS WRIGHT TREMAINE LLP DWT 24973935v1 0084118-000016 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main (503) 778-5299 fax UM 1670 SERVICE LIST W = waives paper service W W Thomas Wolff, Manager Dustin Till, Senior Counsel COLUMBIA BASIN ELECTRIC PACIFIC POWER COOPERATIVE, INC. 825 NE Multnomah, Suite 1800 P O Box 398 Portland, OR 97232 Heppner, OR 97836-0398 Email: [email protected] Email: [email protected] W W Charles N. Fadeley Oregon Dockets Attorney at Law Pacificorp, dba Pacific Power P. O. Box 1408 825 NE Multnomah St., Suite 2000 Sisters, OR 97759 Portland, OR 97232 Email: [email protected] Email: [email protected] W W Raymond S. Kindley Ted Case, Executive Director KINDLEY LAW, PC OREGON RURAL ELECTRIC P O Box 569 COOPERATIVE ASSOCIATION West Linn, OR 97068 698 12th Street SE, Suite 210 Email: [email protected] Salem, OR 97301 Email: [email protected] W W Thomas M. Grim Steve Eldrige Tommy A. Brooks Umatilla Electric Cooperative Assn. CABLE HUSTON P O Box 1148 1001 SW Fifth Ave., Suite 2000 Hermiston, OR 97838 Portland, OR 97204-1136 Email: [email protected] Email: [email protected] [email protected] Page 2 – CERTIFICATE OF SERVICE DAVIS WRIGHT TREMAINE LLP DWT 24973935v1 0084118-000016 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main (503) 778-5299 fax